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CONSTITUTIONAL CONVENTION COMMISSION 



COMMISSION MEETING 

Adult Education Center, University of Maryland 
College Park, Maryland 

September 18, 1966 



COMMISSION MEETING 

Adult Education Center, University of Maryland 
College Park, Maryland 

September 19, 1966 

(Part 1) 



VOLUME IV 



/ ^ 

fOL/O 



CONSTITUTIONAL CONVENTION COMMISSION 



WILLIAM PRESTON LANE, JR. 
Honorary Chairman 

H. VERNON ENEY 
Chairman 



ROBERT J. MARTINEAU 
Secretary 



E. DALE ADKINS, JR. 

HARRY BARD 

CALHOUN BOND 

ELSBETH LEVY BOTHE 

FRANKLIN L. BURDETTE 

RICHARD W. CASE 

HAL C. B. CLAGETT 

CHARLES DELLA 

MRS. MAURICE P. FREEDLANDER 

JAMES O'C. GENTRY 

JOHN R. HARGROVE 



STANFORD HOFF 
MARTIN D. JENKINS 
CLARENCE W. MILES 
EDWARD T. MILLER 
CHARLES MINDEL 
JOHN W. MITCHELL 
E. PHILLIP SAYRE 
ALFRED L. SCANLAN 
L. MERCER SMITH 
MELVIN J. SYKES 
FURMAN L. TEMPLETON 
WILLIAM C. WALSH 



• • * • • © • 



JOHN C. BROOKS 
Executive Director 



KALMAN R. HETTLEMAN 
Assistant to the Executive Director 



William Prescott Allen (Resigned January 5 3 1966) 
Ernest N. Cory, Jr. (Resigned May 13 3 1966) 
Walter R. Haile (Resigned December 20 3 1966) 
William J. McWilliams (Resigned September 10 3 1965) 
Ridgely P. Melvin, Jr. (Resigned August 2 3 1966) 
George L. Russell, Jr. (Resigned July 12 3 1966) 



700 Mercantile Trust Building 
Baltimore, Maryland 21202 



CONSTITUTIONAL CONVENTION COMMISSION 
COMMITTEES 



COMMITTEE ON ELECTIVE FRANCHISE 
AND DECLARATION OF RIGHTS 

James O'C. Gentry, Chairman 
(appointed Chairman on 
July 12, 1966) 
Charles Delia 
Leah S. Freedlander 
John R. Hargrove 
(appointed on July 12, 1966) 
Stanford Hoff 
John W. Mitchell 
(appointed on November 9, 1966) 
Melvin J. Sykes 
(appointed on July 12, 1966) 
Lewis D. Asper, Reporter 



COMMITTEE ON THE EXECUTIVE 
DEPARTMENT 

E. Dale Adkins, Jr., Chairman 

Calhoun Bond 

Charles Mindel 

E. Phillip Sayre 

Furman L. Temple ton 

Garrett Power, Reporter 



Elsbeth Levy Bothe 
(served until June 6, 1966) 
Ernest N. Cory, Jr. 
(served until May 13, 1966) 



William Prescott Allen 
(served until January 5, 1966) 
Ernest N. Cory, Jr. 
(served until May 13, 1966) 
George L. Russell, Jr. 
(served as Chairman until 
July 12, 1966) 



COMMITTEE ON THE LEGISLATIVE 
DEPARTMENT 

Harry Bard, Chairman 

Charles Delia 

Edward T. Miller 

Charles Mindel 

Alfred L. Scanlan 

John H. Michener, Reporter 

(appointed on September 12, 1966) 



Martin D. Jenkins 
(served until June 6, 1966) 
William C. Walsh 
(served until June 6, 1966) 
Alexander Harvey, II 
(served as Reporter until 
September 12, 1966) 



COMMITTEE ON THE JUDICIARY 
DEPARTMENT 

Robert J. Martineau, Chairman 
(appointed Chairman on 
August 2, 1966) 
Elsbeth Levy Bothe 
John R. Hargrove 
(appointed on July 12, 1966) 
Clarence W. Miles 
Melvin J. Sykes 
(appointed on July 



12, 
Lawrence F. Rodowsky, 



1966) 
Reporter 



Richard W. Case 
(served until June 6, 1966) 
William J. McWilliams 



Chairman until 
10, 1965) 
Melvin, Jr. 
Chairman from 
to 



(served as 

September 
Ridgely P. 
(served as 

September 10, 1965 

August 2, 1966) 
George L. Russell, Jr. 
(served until July 12, 1966) 
E. Phillip Sayre 
(served until June 6, 1966) 
L. Mercer Smith 
(served until June 6, 1966 
William C. Walsh 
(served until June 6, 1966) 



COMMITTEE ON STATE FINANCE 
AND TAXATION 

Richard W. Case, Chairman 

Calhoun Bond 

Stanford Hoff 

Martin D. Jenkins 

L. Mercer Smith 

Stephen H. Sachs, Reporter 



COMMITTEE ON MISCELLANEOUS 
PROVISIONS 

Elsbeth Levy Bothe, Chairman 
Leah S. Freedlander 
James O'C. Gentry 
Furman L. Templeton 
Lewis A. Noonberg, Reporter 
(appointed February 26, 1966) 






Harry Bard 

(served until June 6, 1966) 
Charles Mindel 
(served until June 6, 1966) 



COMMITTEE ON POLITICAL 
SUBDIVISIONS AND LOCAL 
LEGISLATION 

Hal C. B. Clagett, Chairman 
(appointed Chairman on 

December 2, 1965) 
Franklin L. Burdette 
Leah S. Freedlander 
Clarence W. Miles 
(served as Chairman until 

December 2, 1965) 
L. Mercer Smith 
John B. Howard, Reporter 
(appointed on May 12, 1966) 



William Prescott Allen 
(served until January 5,1966) 
Ernest N. Cory, Jr. 
(served until May 13, 1966) 
Walter R. Haile 
(served from July 12, 1966 

to December 20, 1966) 
Edward T. Miller 
(served until June 6, 1966) 
Frank A. DeCosta, Jr. 
(served as Reporter until 

February 22, 1966) 



COMMITTEE ON STYLE 

Franklin L. Burdette , Chairman 

E. Dale Adkins, Jr. 

Harry Bard 

Richard W. Case 

Martin D. Jenkins 

Margaret Kostritsky, Reporter 



E. Dale Adkins, Jr. 
(served until June 6, 1966) 
William Prescott Allen 
(served until January 5, 1966) 
Walter R. Haile 
(served from July 12, 1966 to 

December 20, 1966) 
William J. McWilliams 
(served until September 10, 1965) 
Ridgely P. Melvin, Jr. 
(served until August 2, 1966) 
Furman L. Templeton 
(served until June 6, 1966) 
John Martin Jones, Jr. 
(served as Reporter until 

February 23, 1966) 



Calhoun Bond 

(served until June 6, 1966) 

Hal C. B. Clagett 

(served until June 6, 1966) 



COMMITTEE ON CONVENTION PROCEDURES 

Alfred L. Scanlan, Chairman 

Hal C. B. Clagett 

James O'C. Gentry 

Robert J. Martineau 

Edward T. Miller 

John W. Mitchell 

(appointed on November 9, 1966) 

E. Phillip Sayre 

Eugene Pitrof, Reporter 



Franklin L. Burdette 
(served until June 
Charles Delia 
(served until June 
Stanford Hoff 
(served until June 
Clarence W. Miles 
(served until June 
George L. Russell, 
(served until June 



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CONSTITUTIONAL CONVENTION COMMISSION 

Meeting of the Constitutional Convention 
Commission held on Sunday, September 18, 1966, at 
1:30 o'clock p.m., at the Adult Education Center, 
University of Maryland, College Park, Maryland. 

PRESENT: 

H. Vernon Eney, Esquire, 

Chairman of the Commission 

Honorable E. Dale Adkins , Jr., Member 

Dr. Harry Bard, Member 

Calhoun Bond, Esquire, Msmber 

Mrs. Elsbeth Levy Bothe , Member 

Dr. Franklin L. Burdette, Member 

Richard W. Case, Esquire, Member 

Hal C. B. Clagett, Esquire, Member 

Mrs. Maurice P. (Leah S.) Freedlander, Member 

James O'Conor Gentry, Esquire, Member 

Walter R. Haile, Esquire, Member 

Stanford Hoff, Esquire, Member 

John B. Howard, Esquire, Member 

Dr. Martin D. Jenkins, Member 

Honorable William Preston Lane, Jr., Member 

Robert J. Martineau, Esquire, Member 

Edv7ard T. Miller, Esquire, Member 

Charles Mindel, Esquire, Member 

Mr. E. Phillip Sayre, Member 

John Mitchell, Esquire, Member 

Melvin J. Sykes, Esquire, Member 

John R. Hargrove, Esquire, Member 

Dr. Furman L. Temple ton, Member 
Charles Delia, Esquire, Member 

Reported by: 
N. Swetland 
W.r.Danic -t-e-r 



Court Reporters 



THE JACK SALOMON RF.POF.TINC SERVICE 

100 Equitable Building 

Baltimore 2, Maryland 



Lexington 9-(>?60 



ALSO PRESENT: 

2 John C. Brooks, Esquire, Executive Director 
Dr. Clinton Ivan Winslow, Consultant 

3 Dr. John H. Michener, Research Assistant 

4 

5 THE CHAIRMAN: The first item should be an 

• expression of thanks from the head of the table for the 
■ excellent attendance at a meeting on a beautiful Sunday 
® afternoon in the fall such as we have today. I think it 

* bespeaks the desire all of us have to finish our task we 
have before us. I would like formally to extend a wel- 



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come to Mr. John Mitchell, a new Member of the Commission 
appointed by the Governor a few weeks ago in place of 
* 3 Judge Ridgely Mel V in. I have introduced Mr. Mitchell 
^ personally to everyone at the table. 

15 Mr. Mitchell, we welcome you, and we will load 

* 6 you with plenty of work. Mr. Brooks has assembled all of 
H the materials which every Member of the Commission has, 

18 but they are much too bulky to give you today. The 

arrangements will be made to get it to you. The specimen 
that you got today is just a fragment of the work. You 



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2 * have had for about a month, I think, the minutes of the 



THE JACK SALOMON REPORTING SERVICE 

100 Equitable Building 

Court Reporter, Baltimore 2, Maryland iex.njfor. *.a.*M 



* June meeting of the Commission. Are there any corrections 

2 or additions? If not, those minutes will stand approved 

3 as circulated. 

* The minutes of the July meeting were circulated 
5 by mail just a few days ago. I do not know how many 

* Members of the Commission have received them. Could you 

■ indicate by a show of hands? Since only a few have them, 

° we will not consider those for approval today. 

* The report of the Secretary, Mr. Martineau? 

10 MR. BROOKS: No report. 

11 THE CHAIRMAN: Report of the Executive Director? 

12 MR. BROOKS: First I would like to ask if 
** there is anyone here who did not receive a package of 
^ materials yesterday and who has not gotten one today. 

15 Very good. 

16 First, I might report on the educational prog- 

1 7 ram with the University of Maryland. Most of you should 
have received copies of the three flyers that were mailed 
out prior to last Tuesday. That is a general 4-page piece 

2® and also one on the General Assembly and another on local 

^ government. In that particular program, some of you have 



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THE JACK SALOMON REPORTINC SERVICE 

100 Equitable BuiMing 

Court Rrponer, Baltimore 2, Maryland L^inglon 9.671,0 



1 had occasion to see the film we showed immediately after 

2 the last meeting in this room. There are two other 

3 similar slide shows being prepared that can be used as a 
^ part of a general public relations and educational 

5 program by the Commission any time, any occasion you are 

6 called upon to make a speech or to give a program on the 

7 Constitutional Convention. We would like you to consider 

8 also to show one of these slide shows of 22 or 23 minutes 

9 duration. 

10 X would like to thank all of you for your par- 

11 ticipation in the election. We didn't have all the 

12 participation that we wanted in regard to the vote, but 

13 we thought that insofar as it was a 3 to 1 decision Tuesday 

14 we ought to be delighted with it, in view of the fact that 

15 many persons had difficulty finding the Constitutional 

16 question on the voting machine. We have information that 

17 many, many people missed the question altogether. I be- 

18 lieve that is it, Mr. Chairman. 

19 THE CHAIRMAN: I have a number of matters I 

20 would like to bring to your attention. I have already 

21 mentioned Mr. Mitchell's appointment. I will send out 



THE JACK SALOMON REPORTING SERVICE 

100 Equitabl- Building 

Court Reporter, Baltimore 2. Maryland Uttinglot, 0-0760 



1 to the Commission a letter announcing his committee 

2 assignments within the next four or five days. I have 

3 heretofore advised the Commission of the resignation of 

4 Mr. Alexander Harvey as Reporter for the Committee on 

5 Legislative Department and the appointment of Dr. John H. 

6 Michener in his place. I think we are very fortunate to 

7 have Dr. Michener to be able to and willing to assume 

8 the duties of reporter to this Committee. He has, as 

9 you know, been working very closely with the Committee, 
10 an d the transition from Mr. Harvey to Dr. Michener can be 
H accomplished without the slightest hitch in the work of 

12 that Committee. We do not as yet have complete figures 

13 on the results of the voting in the Constitutional Conven- 

14 tion Referendum. 

15 The latest figures I have are approximately 

16 125,000 for, and 24,000 plus against. As soon as we have 
IV the final official figures, we will send them to you. I 

18 think it would interest you to know, however, that although 

19 the total amount of the votes cast, somewhere roughly 

20 150,000, is not as large as some of us had hoped for. 

21 Nevertheless, it is a very substantial proportion of the 



THE JACK SALOMON REPORTING SERVICE 

100 Equitable BuiMing 

Court Reporters Baltimore 2. Maryland Ltxington »-«."4fl 



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total votes cast for election. I am not sure of the 
total, but I think it was a little less than 300,000, 
and the proportion of votes cast in the Constitutional 
Referendum to the total votes cast for the nominees for 
governor is, I think, higher than it has ever been ona 
Constitutional Convention Referendum in the present cen- 
tury, at least, 1930-1950. 

More interestingly, I think, is the fact that 
in some counties, I know for instance in Talbot County 
on the Eastern Shore, the percentage of persons voting on 
the Constitutional Convention Referendum was approximately 
50 per cent of the total number of persons casting ballots 
in that election. Whether Congressman Miller had any- 
thing to do with that, I don't know, but I was very 
pleasantly surprised, and the same thing is true in some v 
of the other counties. We found on election morning 
that there were a great many complaints made, many 
directly to our office; by 11 o'clock I think we had 25 or 
30 telephone calls, and several of the radio stations 
told us they had been deluged with calls, people at first 
insisting that the question was not on the voting machine. 



Court Reportert 



THE JACK SALOMON REROUTING SER\ ICE 

100 Equitable BuiMing 
Baltimore 2, Maryland 



LcMinslon 9-6760 



1 We thought at first it was hard to see and that it was 

* uniformly on the machine and in the top row center. This 

3 is where it was on most, but not all of the machines in 

4 Baltimore City. We got all of the radio stations and all 

5 of the TV stations in the Baltimore area by 12 o'clock 

6 making repeated announcements on the air as to the loca- 
^ tion of the question on the voting machine or what we 

° thought was the location on all the voting machines, and 

^ by half past one, we had many of the TV stations and 

10 radio stations in the Washington area making similar 
ammo un cements . 

The day we were on, we discovered, however, 

13 ■ in some voting machines where for instance they had the 

1^ Democratic and Republican candidates on both machines, 

15 this question was on the bottom of the machine below the 

1 6 Republican candidates so a person with bifocals would 

17 have been almost impossible to see it without stooping 

18 down very low. 

19 Xn the Washington area and in Anne Arundel 
County, it was in what we thought was the best spot in the 



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21 upper left, immediately above the names of the nominees for 



THE JACK SUOMON REPORTINC SERYICL 

100 Equitable BuilJing 

Court Report*r t Baltimore 2, Maryland Le*ir\ S lon 9-6T60 



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governor, but we had a number of telephone calls of 
people saying that it should have been lettered in red 
because you still couldn't find it. It was just too much 
black area and too small a white area. 

GOVERNOR LANE: These are the official counts. 

THE CHAIRMAN: Governor Lane has just handed 
me these figures. He says official figures on a total 
of 1323 precincts out of 1492, the votes for, 129,535, 
and the votes against, 23,923. The figure has gone up 
since the last one I had. Thank you, Governor. 

I would like to take this opportunity to tell 
the Commission and in this way to express my thanks 
and that of the Commission to the Citizens Committee 
for a terrific job of educating the public on the Consti- 
tutional Convention Referendum. You know that a 58-member 
Committee undertook to publicize the Convention. They 
succeeded in getting literally thousands of dollars worth 
of publicity at no cost at all by having large advertisers 
and other people donate time or space as a matter of 
public service. 

The pamphlets mailed out by the Extension Ser- 



Court Rtporten 



THE MCK SALOMON REPORTING SERVICE 
100 EquiubiV Building 
Bjllimur? 2. MirjlinJ 



Lexington 0-i 



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vice of the University of Maryland had a very wide 
coverage. The problem here, of course, was to get lists 
of addresses and actually get the mailing accomplished. 
We had a great deal of help in a number of ways. One of 
the large insurance companies made available its list 
of some 40,000 policyholders in the State of Maryland, 
durnished us with address slips. We were able to get 
the City of Baltimore to give us address slips on the 
entire -- list of employees of the City, some 30,000, 
and similar arrangements with other groups so that the 
pamphlets had a wide coverage. 

The problem with the pamphlets was that the 
mailing was not first class mailing, and the actual 
delivery of some of them was a little too close to the 
election. The Citizens Committee is preparing a report of 
its activities at our request because we think this will 
be valuable in undertaking a campaign to educate the 
public as to the importance of voting next spring on the 
election for delegates to the Convention. 

In this connection, I would like to urge every 
Member of the Commission wherever you can, to accept 



Court Reporter* 



THE JACK SALOMON REPORTING SERVICE 
100 Equitable Building 
Baltimore 2. Maryland 



Lexington ?■ ; 760 



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requests to speak on the subject of the Constitutional 
Convention. We find as a result of the referendum, various 
civic groups, small and large, are asking persons to 
come and talk to them about the Constitutional Convention. 
It is of the utmost importance that the whole matter of 
the Convention be kept before the public and the public 
realize the importance so that we can achieve the objec- 
tive of having the best possible people stand for election 
of delegates next spring. 

We think one of the ways you can help in this 
endeavor is to accept the invitations to speak. You will 
find that the groups to which you talk uniformly are 
interested in what you have to say, they are interested in 
the whole subject of constitutional revision. They are 
interested in what the Commission is doing and also in 
what it is not undertaking to do. 

Now, we are running behind our schedule of 
target dates. On our original target, we would have had 
a completed tentative draft of the Constitution by this 
meeting. We do not. I think we are well on the way, but 
it is imperative that we have a completed tentative draft 



Court Reporters 



THE JaCK SALOMON KEPORTISG SERVICE 
100 Equitable Buil.iins 
BjItiT-.ore 2, Miry! JP 'l 



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by the October meeting because this will really be only 
October and November for consideration of that draft, and 
its final revision, since we must have the month of 
December for final work of the Committee on Style and 
editing, printing, and so forth. This means it will not 
be possible for us to have a meeting on some tentative 
drafts of separate parts of the Constitution which has 
not yet been submitted to you prior to the full draft to 
be considered at the October meeting. With this in mind, 
the staff will endeavor to work closely with each Com- 
mittee and the Chairman of each Committee and with the 
Committee on Style in the next few weeks and circulate 
to each Member as far in advance of the next meeting as 
possible a complete draft of the Constitution. 

We will probably do this even though we are 
unable at that time to send out the detailed reports of 
each Committee. We think it is important that the Com- 
mission Members before the next meeting have an opportunity 
to get a bird's-eye view of the entire document and 
to be thinking about it before they start further, final 
consideration of the detailed reports that will be con- 



Court Reporters 



. TH£ J\CK SALOMON REPORTINC SERVICE 
100 Equitable Building 

Baltimore 2, Minljnd 



Lexington 9-o7.\0 



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1 sidered. This means that the October meeting will be 

2 indeed a very important meeting, and I am afraid it will be 

3 a lengthy meeting. I will take up with you before the 

4 end of the session on Tuesday what we should do in 

5 October; depending on what progress we make at this meet- 
ing, I think it is clear that we will have to have more 
than a two-day meeting, and there may be a question as to 
whether it will be better to have a three-day meeting 
such as we are having this time, or to have two weekend 

10 meetings a week apart. You might be giving some thought 

to that in the next day or so. 

I am sure all of you received the notice indi- 

eating that, through the courtesy of the Governor, we 
1^ will be his guests on the State yacht tomorrow evening. 
15 We will adjourn the usual time tomorrow afternoon about 
IS 5:15, leave here about 5:30 and go aboard the yacht about 

17 6 o'clock. V7e will have dinner aboard and return to 

18 Annapolis around 9:15 or 9:30 and drive back to College 

19 Park so that you will be back in ample time. 

20 I think our experience at the last meeting, 
2 - when one reads the transcript, at least indicated that a 



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THE JaCK SALOMON REPORTINC SERVICE 

100 Eq lii.ibl- Bui i.n; 

Court Rtparttrt Baltimore 2, Maryland Iwingfon J-s."« 



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late evening session doesn't pay dividends, because I 
think all of us by late afternoon were beginning to 
tire. It was with this in mind that we arranged the 
social break for Monday evening so that we will have a 
chance to relax and remain together and discuss some of 
the problems that we may be considering. With this same 
thought in mind, while we have an evening session tonight, 
it will not be a long session. I would hope to keep it 
down to an hour, certainly not longer than an hour and a 
half, so that by 9 or 9:30 we could be free of the meeting 

We will still have plenty of reading to do, 
but also some opportunity for a little relaxation before 
. the meeting tomorrow. I personally would like to suggest 
that our sessions tomorrow and Tuesday morning begin at 
8:30 in the morning. I make that suggestion because of 
the great amount of material that we have to go over at 
this session. Rather thon decide that, I will put the 
question to you before we adjourn tonight. 

1 am not sure what time dinner will be this 
evening. We will have dinner arranged for all of us 
together, probably around 6 o'clock, and if so, we will 



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adjourn about 5:30 for a little break before dinner and 
then come back perhaps at 7:30. We will have the exact 
time before we break up this afternoon. One other general 
observation before we start on the consideration of the 
Committee Reports. As all of you know, we have had the 
stenographic reporter present at the last three Commission 
meetings and have been taking the transcript of the pro- 
ceedings of the Commission. This is an item for which we 

did not budget. It is specific. We have considered whether 

is 
the cost/ justified and whether we should dispense with 

it. The experiences indicate that without it, the staff 
and more particularly the Committee reporters and Chair- 
man are really lost. We can't possibly sit here and 
engage in debate and make notes at the same time as to 
the action of the Commission, so that for this reason, for 
no other, we wil continue to have the transcripts. There 
is, however, another reason. I have discussed this, not 
with a large number, but with various Members of the 
Commission, and their feeling uniformly is that this is 
the only way we can really have a record of the discussion 
and debate of this Commission and give us the basis for 



Court Reporters 



THE J\CK SALOMON KEPORTINC SLRMCE 
100 Equitable Building 
Baltimore 2. Maryland 



Lexington 9-6760 



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a report ultimately to the Governor and the Legislature 
and people of the State, not only as to what we recommend, 
but as to why we recommend what we do. 

Therefore, we want to continue with the trans- 
cript but in order that it be meaningful, please keep 
in mind the very simply rules that we must observe, wait 
until the Chairman recognizes you before you speak, both 
so that the record gives me a chance to speak your name 
and it will appear in the record, and also to aid the 
reporter . 

Secondly, the debate will be more orderly. Be- 
cause of the great amount of material we must get over, 
I do not want to limit debate, but insofar as is possible, 
say what you want to say at one time, and then do. not 
repeat again in the same debate. I want to state again 
the few rules governing debate and discussion of the 
Reports that we worked out at the last meeting and which 
I think by and large worked satisfactorily. 

This is not like a formal session of the Legis- 
lature, for instance. It is more in the nature of con- 
sideration by the Committee as a whole and yet we have to 



Court Reporteri 



THE J\CK SALOMON REPORTING SERVICE 
100 Equitable B . I i tig 
Baltimore 2, M.ir\iand 



Lelirtftcn ■);"■' 



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1 have some rules. We can't shut off all reconsideration 
of matters that have been discussed before because too 
often at the meetings where they are discussed, we have 
not had great opportunity to study the material at length. 
Therefore, there will not be an ironclad rule on recon- 
sideration of matters that have been considered by the 
Commission before. Instead, we will follow the same 
rules as we did at the last meeting. Any matter may be 
reconsidered on motion of the Committee. Any matter 
may be reconsidered on motion of a Member provided it is 
approved by a majority of the Commission. 

I request both Committee Chairmen and Members 
not to ask for reconsideration of the matters unless you 
feel that it is vital, that it be discussed again and re- 
considered . 

io Now, one slight correction in addition to the 

1 ' agenda which you received in the mail. The indication 

^° was that at this evening's meeting we would consider the 
■^ Fourth Report of the Committee on Miscellaneous Provisions 
We will consider that Report but only the portion thereof 
dealing with militia. We will not consider the portion 



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of the Report dealing with education. That part of 
that Report and the Report of the State Committee on 
Finance and Taxation which touches to some extent on the 
same areas will be considered at the October meeting. 

Now, are there any questions, comments or any 
announcements anyone wishes to make? If not, we will 
move to a consideration of the Sixth Report of the Com- 
mittee on Legislative Department. 

Dr. Bard? 

MR. CASE: Mr. Chairman, I have a question. 
Did you say our Report would be considered at the October 
meeting? 

THE CHAIRMAN: Not your First Report, your 
Second Report which deals with budgetary provisions touches 
on education. So that all of you will have in mind what^ 
the tentative agenda is, let me just state it now. We 
hope to conclude this afternoon the Report of the Committee 
on Legislative Department, the Ninth Report on the Committed 
on Executive Department, and the Seventh Report of the 
Committee on Elective Franchise dealing with elective 
franchise. 



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1 This evening, we will consider any of those 

2 Reports we do not finish this afternoon, and the Fourth 

3 Report of the Committee on Miscellaneous Provisions deal- 
^ ing with militia. Tomorrow morning, the first thing is the 
5 Report of the Committee on Taxation and Finance, and 

secondly, the Report on the Committee on the Judiciary. 
Department. Tomorrow afternoon we will take up the Report 

8 Eighth Report of the Committee on Elective Franchise 

9 dealing with Declaration of Rights; Tuesday morning we 
will take up the tentative draft of the Fifth Report of 

1- the Committee on Political Subdivisions, and if there is 

12 time, the Sixth Report of the Committee on Convention 

12 Procedures . 

14 Dr. Bard? 

15 DR. BARD: Two announcements I would like to 

16 make. First, to begin with, you will note that the 

17 Committee has not yet made any recommendation in respect 

18 to unicameralism. We expect to have that recommendation 

19 ready at the next meeting of the Commission; and secondly, 

20 i would like to announce that I have asked Dr. Michener to 

21 be beside me because the two of us have been working in 



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connection with these changes as well as the Committee 
as a whole. At the meeting held on August 21, 1966, the 
Commission considered drafts of 18 sections of the new 
Constitution dealing with the Legislative Department 
as submitted in our Report. Some sections were approved 
as submitted. Others were revise4 and still others were 
referred back to us for further study, so this Sixth Re- 
port which you have with you will include action on the 
part of our subcommittee in terms of revisions that you 
submit as well as revisions noted here that took place 
as a result of the Commission recommendations at the 
last meeting. 

In this Report, the Committee on the Legisla- 
tive Department presents drafts of those sections which 
were revised or referred back to us for revision. The i 
Committee also submits comments on four sections of the 
present Constitution dealing with the Legislative Depart- 
ment, that is over and above what we reported last time. 

There are sections that will be new in our 
commentary. Now, the first item of importance the Com- 
mittee, in the sections it is resubmitting has placed all 



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required extraordinary majorities at two-thirds rather 
than three-fifths of the Members of the House involved. 
The Committee recommends that all provisions for extra- 
ordinary majorities be set at the two-thirds figure. Let 
me put some meat into that. 

In the Constitution by way of illustration, 
Article 3, Section 27, calls for three readings unless 
two-thirds of the Members so decide; that is furthermore 
Article 3, Section 19, calls for the expulsion of a Mem- 
ber of the House if two-thirds so decide after proceeding 

On the other hand, in connection with amend- 
ments to the Constitution, Article 14, Section 1, three- 

with 
fifths are required. In connection/ the Governors veto, 

three-fifths are required for overriding a veto, Article 
2, Section 17. In connection with referendum, Article 
14, Section 2 requires three-fifths of the State Legis- 
lature . 

Now, it is the belief of the Legislative 
Department Committee that we ought to make this uniform 
and that it is our feeling that uniformity ought to be 
along the lines of two-thirds. By way of illustration, 



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the United States Constitution uses two-thirds for amend- 
ments , it uses two-thirds in terms of reacting to its 
own membership, and this fraction is more common we find 
in connection with these requirements, and so throughout 
this entire paper, we would like the privilege of using 
two-thirds, and we are recommending that where the frac- 
tions are used in other parts of the Constitution, two- 
thirds be used. We don't think the differences are great. 

However, minor as they may be, if you do your 
arithmetic, it would be a slight difference that would 
make the requirement a little bit tougher under two-thirds 
but not much. We think the uniformity factor is the im- 
portant factor. 

Now, Mr. Chairman, I don't know whether you 
want to handle that at this stage or just leave it as a 
recommendation which would be acted upon by the other sub- 
committees , but we felt this remark was important because 
throughout our recommendations here, the two-thirds frac- 
tion would be in use. 

THE CHAIRMAN: I think it would be desirable to 



21 j discuss it now, because the other Committees, for instance, 



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1 the Committee on Executive Department can't do its draft- 

2 ing without having this, and the question is a very im- 

3 portant one. Am I correct in my understanding of your 

4 recommendations that the two-thirds be two-thirds of the 

5 Members elected to each House, or two-thirds of those 

6 present? 

7 DR. BARD: Two-thirds of the Members elected. 

8 THE CHAIRMAN: So that would be a very, very 

9 high percentage of Members elected authorized to propose 

10 a constitutional amendment or to override the Governor's 

11 veto. 

12 DR. BARD: As far as this is, the Senate is 
1.3 concerned, it would mean 30 instead of 27 as now con- 

14 stituted. As far as the House is concerned, it would 

15 be 96 instead of 87. The changes are not great, but there 

16 would be a significant change. We had two elements involved 

17 in this. It is our feeling that the use of both frac- 

18 tions is confusing to one who makes the study of this whole 

19 concept, and we believe that it would be in order to use 

20 one or the other fraction. 

21 We tend to believe that the two-thirds fraction 



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is a better one to use in the extraordinary action that 
is taken, is one that usually requires a number signific- 
antly. 

THE CHAIRMAN: Let me suggest that for purposes 
of discussion we consider first, not the question of 
uniformity, but the question of whether a two-thirds 
rather than a three-fifths vote should be required to 
override the Governor's veto to propose a constitutional 
amendment or to pass what we would call an emergency act, 
a bill to take effect notwithstanding a referendum. 
What is concerning me is the fact that I think we all 
know that if there is any real fight on, it is very difficult 
to get a three-fifths vote, and it may be so difficult as 
to be impossible to get a two-thirds vote. 

I simply want to have the matter fully dis- 
cussed by the Commission. 

DR. BARD: May I comment just briefly further. 

It is our belief that as the numbers rise as far as the 

total numbers in the State Legislature, that is as we 

to 
have, seen arise from 29/43 in the Senate and rise from 

123 to 142 in the House, and perhaps even a further rise, 



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then we believe that it becomes increasingly important 
that this fraction be two-thirds because as it rises, 
then proportionately, you would need a more significant 
number to act in terms of extraordinary circumstances . 

THE CHAIRMAN: Any comment, discussion? 

DR. BARD: Furthermore, the United States 
Constitution is using two-thirds. 

THE CHAIRMAN: Is that also two -thirds of the 
Members elected? 

DR. BARD: Yes, not at all times. 

THE CHAIRMAN: I thought it was those present. 

DR. WINSLOW: Never two-thirds in the United 
States Congress. 

THE CHAIRMAN: Is it two-thirds of those present? 

DR. WINSLOW: Two-thirds of those present. 

THE CHAIRMAN: I think constitutional amendment 
states two-thirds of both Houses of Congress. 

DR. BARD: Let me check on that, Jim. I don't 
kiow whether you are right on that, but I will check. 

THE CHAIRMAN: I seem to remember an argument 
being made about the Fourteenth Amendment that it wasn't 



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proposed when two-thirds of both Houses were present. 

2 DR. BARD: Congress, whenever two-thirds of 

3 both Houses, not those present. 

4 DR. WINSLOW: That has been interpreted, sir, I 
** think as two-thirds of those present. I know of no case 

in which there is two-thirds of all the Members required 
of the National Assembly. 
8 MR. CLAGETT: What would be the arithmetic, 

what would be two-thirds of the House and Senate? 
*° THE CHAIRMAN: You mean as of the next session? 

11 MR. CLAGETT: Yes, sir. 

DR. BARD: Two-thirds would be 96, as I got 

13 the figure. 

14 THE CHAIRMAN: Of what? 

15 DR. BARD: Of 142, the House and three-fifths 
vould be 87, a difference of seven votes. In the Senate, 

it would be 27 under the three-fifths rule, and 30 under 

18 ' the two-thirds rule. 

1 9 THE CHAIRMAN: Of course, this means, and to 
use your illustration, 96 votes of those present would 



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would be a part of the one-third that you are not count- 

o 

ing. I am not expressing that very well. 

3 DR. BARD: It would work the other way, too. 

THE CHAIRMAN: It could be much more than two 

5 thirds of those present is what I am suggesting. 

6 Mr. Miller? 

7 MR. MILLER: Mr. Chairman, in the Federal level 
in the Congress of the United States, a number of Members 

9 fluctuate, of course, because of the larger membership 
the more vacancies there may be, and the rule is very 
simple. It is two-thirds of those present, and it requires 
a quorum, of course, but after that, two-thirds of a legal 
meeting of the House or Senate, the two-thirds rule is 
met . 

15 THE CHAIRMAN: Any further comment? 

16 DR. BURDETTE: I am a little confused as to 
^ whether we are now talking about two-thirds of all Members 

serving or two-thirds of those present, presuming a quorum. 
19 THE CHAIRMAN: Dr. Bard says the recommendation 

of his Committee is two-thirds of the membership. 

DR. BARD: I am not sure. I wanted to express 



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recommendation, I don't feel strongly about it, the two- 
thirds, but I think one of the problems of the Legislature 
is that there is very little limelight on the Legislature 
in any specific terms while on the contrary in the national 
government, there is a very great deal of limelight. 

Some of the Legislatures I have observed have 
a great deal of absenteeism. When I was living in New 
Jersey, if anybody was absent to count him present, not 
in voting, but voted in accordance with his wishes. This, 
of course, means the public has no real way from the 
record of knowing what happens in a legislative career 
which means a small number could enact the legislation. 

I am really attempting, Mr. Chairman, to 
counter some of the arguments that I thought you were 
making by inference or a two-thirds majority of a quorum 
which it seems to me to be a very dangerous business in a 
real crisis. You make the point it is hard to get a two- 
thirds majority, but I make the point it is fairly easy 
to get anything through when nobody is around, and I think 
that is more likely to happen in the Legislature in the 
State than in the national Congress. 



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MR. SAYRE: Speaker Mandel has testified that 
he preferred to have absolute number and that he feels 
that three-fifths is a good workable figure. My personal 
preference is that we have an absolute figure, three- 
fifths be the highest and as a practical matter. If you 
went up to two-thirds , I think as a practical matter, you 
would have to have two-thirds of those present and voting. 
It is more rational in my opinion to have two-thirds of 
the Legislature than bicameral. 

In bicameral, three-fifths -- leave that last 
portion out . 

THE CHAIRMAN: Any further comment? 

DR. BARD: I would like to read from the 
Constitution of the State of Hawaii. 

If, after such consideration -- 

THE CHAIRMAN: Keep your voice up a little. 

DR. BAFD: If, after such reconsideration, such 
bill or such item or items shall be approved by two-thirds 
vote of all members to which each House is entitled, the 
same shall become law. And further on, in regard to 
debt limitations, authorization is on the basis of two- 



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* thirds, that is throughout this entire Constitution, the 

* usage is that of two-thirds. 
3 I believe I am right, Dr. Michener, in saying 

* that if one were to make a survey of which fraction is 

5 used more often, in State Constitution wouldn't it be 

6 two-thirds rather than three-fifths? 

7 DR. MICHENER: Yes, those present and voting, 
I am sure. 

9 MR. SAYRE: Mr. Eney, I forgot one comment 

10 that Mr. Mandel testified. He said he did prefer an 

- absolute number using the three-fifths because he really 

1 2 felt there was actual experience of better attendance, 

13 and he says when you have an absolute requirement, atten- 
1^ dance is better. 

15 THE CHAIRMAN : When you say absolute number, 

16 you mean percentage of the elected membership? 

17 MR. SAYRE: Yes. 

18 THE CHAIRMAN: Mr. Delia? 

19 mr. DELLA : I am sorry I wasn't at the last 

20 couple of meetings of the Legislative Committee; other- 
wise I could express an opinion there. It is my opinion 



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1 from my experience from working around Annapolis that 

_ i 

2 the absolute figure would be most advantageous in the 

3 operation of the Legislature. In that way, the Legis- 

* latures know how many people have to be present in order 

5 to either pass or not pass a piece of legislation, es- 

6 pecially if it is going to be a veto on a constitutional 
question . 

8 There are, sometimes in the evening sessions, 

9 where they have night sessions, as many as 30 to 35 
Members absent in the House alone. In the day sessions, 

** lot of times there are sometimes as high as 15 or 20 

12 | absent on many occasions. Some of them are running around 

! 

13 doing committee work, and some of them are not just there. 

14 it seems to me if you are going to use the higher figure, 

15 it is going tomake it that much more difficult for some 

16 of the people in the Legislature to be able to express 

17 their views and do the things they feel their constituents 

18 feel is necessary to do, but it seems to me that where 

19 the two-thirds might seem appropriate, three-fifths is more 

20 actually a practical matter to use in the formation of 

I 

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1 DR. JENKINS: Mr. Chairman, I question the 

2 basic assumption of the Committee that consistency and 

3 uniformity is a virtue in this respect. I believe that 

^ for. such things as the expulsion of a Member, the impeach- 

5 ment of the Governor, or the adoption of a constitutional 

" amendment, we should have a two-thirds majority of the 

7 elected House or at least should be a very large number 

8 authorized to override a veto. I believe, in order to 
respect the power and integrity of the General Assembly 
we should have a lower number. 

13 THE CHAIRMAN: Mrs. Bothe? 

12 MRS. BOTHE: Mine was merely a query, Dr. Bard. 

13 Does the present provision require that it be two- thirds 
1^ or three-fifths of those eligible to vote or of the number 
15 in the House, because since the United States Constitution 
IS apparently hasn't been correctly interpreted by the Com- 
1? mittee, I was wondering whether the Maryland Constitution 

18 hadn't also been misunderstood. 

19 I would be willing to vote for uniformity but 

20 not uniformity requiring that either the three-fifths or 

21 the two-thirds be of all those eligible to vote, because 



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1 that would impose a rather formidable barrier, I think. 

MR. BROOKS: By way of explanation, there is 
3 a primary fundamental difference in the total operations 

in that the Maryland Legislature constitutionally requires, 
5 has a provision requiring the constitutional majority for 
° the enactment of any legislation. The Congress does 
^ not operate under it. It is on that premise that all 

these other special votes of the entire body elected to 
sit, so there can be no extensions under this procedure. 
10 THE CHAIRMAN: Section 17 of Article 14, deal- 

ing with amendments is much more specific than Article 5 
of the Federal Constitution. It says, Passed by three- 
I 5 fifths of all the Members elected to each of the two 
Houses. 

15 A nv further comment? 

16 JUDGE ADKINS: I wonder if the Committee has 
sought to collate this in the Constitution where it 

18 occurs. Reverting to what Dr. Jenkins says, there are 

19 clearly instances where there should be two-thirds of the 
membership. Before we vote on this, we ought to have some- 



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In the next Report we are recommending that 
the General Assembly may, by two-thirds vote of all Mem- 
bers pass a declaration stating the Governor is in- 
capacitated. Clearly in my judgment that should not be 
less than two-thirds of the entire body, and I would 
not want to see us inadvertently tie ourselves now to a 
three-fifths with that question coming up at a later 
time. If we are going to adopt a fraction now for the 
entire Constitution, it seems to me we ought to have all 
the instances laid before us. 

THE CHAIRMAN: Yes, well, I had suggested this 
debate deal with the three questions of amendments to 
the Constitution overriding the Governor's veto and pass- 



T A. ! 

1 * ! ing a bill that would take effect, notwithstanding the 



petition for referendum, and take up secondly the question 
of the other instances, and whether there should or should 
not be uniformity. 

It may be desirable to separate these three. 
There may be some feeling that perhaps the same rule 
shouldn't apply to those, and if so, we can put each to 
a vote separately. 



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To answer Judge Adkins 1 question, Dr. Bard, 
can you mention any others besides those you did mention, 
impeachment? 
* DR. BARD: Expulsion of members, two-thirds; 

5 and amendments to the Constitution is three-fifths, and I 

6 don't know, Dr. Jenkins, you could make a pretty good 
• debate as to whether an amendment to the Constitution 

8 is less important than, let us say the elimination of 

9 three readings. 

Actually it would be pretty difficult to set 

~ up a good debate in that connection. My own feeling is 
*- c that Judge Adkins has a point. I believe it would be 

13 important for us to enumerate all instances in this con- 

14 nection. 

15 THE CHAIRMAN: In order to make some progress 

16 today, let me say that we will put up to vote the separate 

17 vote on each, the four or five instances that have been 
16 mentioned in discussion, so that we can see what we are 

19 dealing with. 

20 DR. BARD: These three or four, the three 
readings, expulsion of members, amendments to the Consti- 



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tution, and referendum. 

THE CHAIRMAN: And overriding the veto. These 
3 are three instances here which have import. And then 

there is a sixth mentioned by Judge Adkins coming in his 
Report, and that is the question of gubernatorial dis- 
ability. 



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it again, the only reason why, to answer Mrs. Bothe's 



10 

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question, the only reason why we did not say we would like 
to have this two-thirds in terms of those who are 
present is because the Constitution does set that limita- 
tion. In fact, this Committee did on another occasion. 

13 THE CHAIRMAN: Mr. Miller? 

u 

A * MR. MILLER: Mr. Chairman, before voting, I 

am not quite clear. Are we to vote on the basis of the 
■*-" percentage of the elected membership, or may we have in 
-^ the alternative, on certain ones of these things, the 
^•° two-thirds of the Members present and voting? 
19 THE CHAIRMAN: Well, I think perhaps the thing 

to do is to put up the recommendation of the Committee, 
general recommendation that the ratiq whatever it is, 



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see what the general feeling of the Commission is. 

DR. BARD: I don't think that was our position, 
our Committee position, Mr. Chairman. Our Committee 
position was that more along the lines that Congressman 
Miller has in mind, namely that whenever the fractions 
were used throughout the Constitution, that the fraction 
in terms of extraordinary action, it is our feeling that 
extraordinary action was so extraordinary it really needed 
two-thirds, and if there were an application that applied 
to membership present that it would continue to apply 
within this frame of reference. 

We did not want to extend the concept of two- 
thirds or three-fifths to harness it necessarily with the 
total membership, to use it only as it applies, which is 
your question. 

THE CHAIRMAN: If that is the case, perhaps 
we better put both questions with respect to each type of 
situation, that is whether it should be ratio of the 
total membership or ratio of those present, and if so, what 



ratio. 



DR. BARD: I would like to refer that to 



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1 Mr. Brooks, whether we have the authority at this point 

2 to change some of the decisions made earlier in respect 

3 to total membership. I remember on one or two occasions, 

4 we talked about the passage of a bill by majority of 

5 those present, and this body as a whole said that they 

6 wanted it to be — 

7 THE CHAIRMAN: No, I am not talking about that. 
9 I am talking about only instances where an extraordinary 
9 number is required. 

10 DR. BARD: I see. 

11 THE CHAIRMAN: Any further discussion? 

12 Mr. Sykes? 

13 MR. SYKES: Mr. Chairman, it seems to me that 
14- there is a different strength to the policy behind the 

15 requirement of a higher number in each of a great many 

16 different instances. I would think the first question to 
IV be put is whether there should be any uniformity at all, 
IB and I am frank to say that I think there should not be. 

19 Now, if there is not to be uniformity, then I 

20 would question whether we should try to solve this problem 

21 on the basis of abstract arithmetic. I think the amount, 

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the proportion that would be required in each case would 
be better discussed in the context of the individual 
Committee reports where you can assess the strength of 
the policy involved in the light of all the flesh and 
bones of each individual question. 

I suggest that to the Chair as a method of 
proceeding and maybe a suggestion of what votes to take. 
I am not ready to vote on each individual item without 
checking what the present constitutional provision is, 
by seeing whether there is any overriding need for change; 
and if there is no need for uniformity, then a great deal 
of the argument for change would, it seems to me, to 
lose its authority. 

THE CHAIRMAN: Well, if we had unlimited 
time, I think it would be desirable to do as you suggest-. 
The difficulty is that if we are going to have a draft 
for the next meeting, the Committees which have not yet 
submitted reports on the specific points here might not 
have any guide or direction. I am not suggesting that we 
try to cover every point that may be in the present Con- 
stitution in which an extraordinary vote is required, but 



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1 only the four or five as to which the Committee can 

2 advise us this afternoon. I am perfectly willing to 

3 submit first the question whether there should be uni- 

4 formity. 

5 MR. CLAGETT: Mr. Chairman, I think from the 

6 discussion we have had to due date got it narrowed down 

7 as to whether we would like to see the absolute figure, 

8 that is of elected Members or whether we would like the 

9 practice of the Federal Congress. If we narrow it there, 
10 we can still go forward and debate with respect to the 

H percentage figure in the light of Mr. Sykes 1 recommenda- 

12 tion. 

13 THE CHAIRMAN: Well, that is what I first sug- 

14 gested, but sane indicated and Dr. Bard indicated that the 

15 Committee feels that in some situations they may recommend 

16 one thing and in others, something different; so we can't 

17 proceed that way. 

18 DR. BARD: May I ask, Mr. Chairman, Mr. Sykes 

19 what extraordinary action would be less, some lesser 

20 extraordinary that it would require a smaller fraction? 

21 MR. SYKES: I can see, for instance, you would 



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want three-fifths of those present to put a law into 
effect despite a pending referendum. That would be one 
possible way of balancing your attitude toward referen- 
dums on the one hand and the need for some extraordinary 
activity on the part of the Legislature on the other. 
I can see an argument for a sixty-six and two-thirds 
per cent of the total membership in case of veto, over- 
riding the Governor's veto on the theory you might want 
to strengthen the Governor, and this accomplishes that. 

My own feeling on all these things is that the 
present machinery that we have in the Constitution for 
each of the problems seems to have operated in a reason- 
ably satisfactory way, and I would put the burden of proof 
on those who advocate changes; and if the changes are 
only theoretically advantageous, I would tend to say, 
Let's stick with what we've got, and that is the kind of 
thing I meant. You would have an argument on each point. 

THE CHAIRMAN: Now, I want to submit first the 
question of whether the Commission favors the Committee 
recommendation that there be uniformity. Are you ready 
to vote on that question, or is there any further discus- 



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sion of that question. 

MR. SAYRE : This is on extraordinary measures? 

THE CHAIRMAN: Extraordinary measures, whether 
there should be uniformity in the provision as to the 
ratio of vote required whenever an extraordinary vote is 
required under the Constitution. 

DR. BARD: May I make one final comment, that 
is, that it would be possible under this two-thirds vote 
to have something like 46 Members opposed to an extra- 
ordinary action and the extraordinary action still take 
place. So when we are talking about undue restrictions, 
as you up these numbers which we have done by raising 
the membership of both the Senate and the House of Dele- 
gates, you still have a very large number that could be 
block action. 

This is the point that we are taking, and we 
feel that if it is to be extraordinary, then it ought to 
be under circumstances which safeguard the State. That is 
the final point. 

THE CHAIRMAN: Any further discussion on the 
question of uniformity at this time? If not, we will put 



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the question. The question arises on the recommendation 
of the Committee that in all instances where under the 
Constitution an extraordinary vote will be required that 
whatever that extraordinary vote be, it be uniform. 

Ready for the question? All those in favor 
of uniformity, signify by a show of hands. 

Contrary? The motion is lost, 7 to 13. 

Now, I think probably, although I really don't 
know, I think probably we would save time on taking up 
first the situations dealing with the Legislature where 
an extraordinary vote would be required and consider 
separately for each whether the vote be a proportion of 
the total membership or of those present, and if so, 
how many. 

Dr. Bard, which one do you want to take up 
first? 

DR. BARD: I think under the circumstances, the 
only thing for us to do is to vote on them. It seems to 
me, if we are not going to be uniform, then we vote on 
them in terms of the application, and as it is applied in 
this document as we are going through. I don't see any 



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I need for another vote. 
£ MR. MILLER: Mr. Chairman, it seems to me that 

it is important to decide the overall policy as to 

* whether these votes are to be by the elected membership 

5 or whether we shall have them, or want them in individual 
C cases on the Members present and voting as in the Federal 

System. 
i THE CHAIRMAN: Mr. Miller, I rather sense that 

6 there was a considerable feeling in the Commission that 
1C they might feel one way on some issues and a different 

II way on other issues; and I suggest we put the question 

12 up as to each issue. 

13 MR. MILLER: On both points? 

14 THE CHAIRMAN: Both points. 

15 MR. MILLER: On number and how? 

16 DR. BARD: Yes, as it occurs. 

17 THE CHAIRMAN: Mrs. Bothe? Has your Committee 

18 considered it? 
; MRS . BOTHE : No . 

: THE CHAIRMAN: Then instead of doing as I 

fl suggested, we will move ahead and consider each of these 



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extraordinary votes as they arise either in the Report of 
this Committee or the other Committees. 

DR. BARD: Then we shall move ahead in terms 
of our Report. You will find in the back of our Report, 
starting with the lettered pages, the various Sections, 
and you will note that we will not be discussing some 
of the Sections because they have been approved at 
previous meetings. We haveput it all together in the back 
so you can follow those we will be discussing today. 

Section 5, Within three months of an official 
publication of the population figures. Mr. Chairman, 
I don't know whether our procedure today shall be to 
read this . 

THE CHAIRMAN: I think it is desirable. 

DR. BARD: Within three months of an official 
publication of the population figures of the decennial 
census of the United States, the Governor shall present 
a plan of districting and legislative apportionment to 
the General Assembly. If the General Assembly is not in 
session at the time the Governor shall convene the General 
Assembly in special session. The General Assembly shall 



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enact such plan as presented or as amended by it, or the 
General Assembly shall enact its own plan. If four 
months prior to the final date for the filing of candi- 
dates for the next Statewide election occurring after 
publication of such census figures a plan has not been 
enacted into law, the plan as presented to the General 
Assembly by the Governor shall become law. Upon petition 
of any eligible voter filed no later than ten days after 
the enactment of a plan, or after the final date for 
action set forth above, whichever first occurs, the Supreme 
Court of Maryland shall have original jurisdiction to 
review the districting and legislative apportionment of 
the State and to grant appropriate relief. 

It is that last sentence which we have been 
delegated to take care of in revision that you will want 
to look at fairly carefully, the comment speaks for the 
changes that we have made. 

THE CHAIRMAN: Any questions? Any comments? 

MR. SAYRE: A question. 

THE CHAIRMAN: Mr. Sayre? 

MR. SAYRE: How is the word , grant, to be 



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^ interpreted? 

2 THE CHAIRMAN: Where? 

3 MR. SAYRE: In the very last sentence. 
* DR. BARD: This would mean that, as we under- 

5 stand it, that the Supreme Court would have the power to 

6 either review a plan that had been in existence or if 
' no plan were in existence, grant would permit it to 
° formulate one. 
9 THE CHAIRMAN: I don't think lawyers would have 

any difficulty with that phrase. It is a customary 

** phrase, Mr. Sayre, if I follow your question. 

12 MR. SAYRE: Well, let's say there would have been 

13 testing as to its constitutionality, does that mean the 
1* draft does have the power to come up with his own proposal 

15 which will be law, is that right? 

16 THE CHAIRMAN: If it decides it has that power, 

1 7 I would say so. It has decided that under the present 

18 Constitution. 

19 MR, SAYRE: That is what I thought. I thought 

20 our idea was if there was no other course of relief that 
2 * it would have that power, and I don't know that this means 



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that exactly. 

DR. BARD: We think it does. If there is 
nothing there, then we think it does have the power to 
actually establish a plan. 

THE CHAIRMAN: Mr. Gentry? 

MR. GENTRY: My question would be this: If . 
the Legislature does its duty and enacts a plan and no 
petition is filed, could the Supreme Court still review 
that without any, on its own initiative? It seems to 
say for after the final date for action set forth, and 
it doesn't say there be no action, then the Supreme Court 
shall have original jurisdiction. 

THE CHAIRMAN: Wouldn't that be clarified if you 
took the comma out after the word, plan, clarify it for 
you? I am assuming, Dr. Bard, that the Committee means 
by the parenthetical phrase, or after the date, merely to 
be giving an alternate date. 

DR. BARD: That is correct, and the commas 
might, deleting the comma might be helpful. 

MR. GENTRY: What you mean, the final date, 
there be no action taken. You don't mean, final date there 



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having been action taken. 




2 


DR. BARD: It could well be that the final date, 




3 


action having been taken, an eligible voter filing in 




4 


connection with -- 




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MR. GENTRY: I don't mean that. Final action 




6 


taken. 




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DR. BARD: And there being no action, that 




8 


is correct. 




9 


DR. MICHENER: What we had in mind, there is 




10 


a plan no matter whether by the Legislature, by the 




11 


Governor upon filing of a petition which is an absolute 




12 


prerequisite, the Supreme Court would have jurisdiction 




13 


to review that plan. 




14 


MR. GENTRY: I think you have left it a little 




15 


up in the air, on the requirement that a petition be 




16 


filed to get it in the Supreme Court. 




17 


DR. MICHENER: It would always require a 




..» 


petition . 




» 


MR. GENTRY: You haven't said that. 




20 


DR. BARD: Upon petition of any eligible voter. 




21 


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final date. Maybe taking out the comma would do it. 

THE CHAIRMAN: Any further question or comment? 

JUDGE ADKINS: I have this question, it is 
probably my own inability to read this language. It 
is quite clear in everybody's mind that the Governor has 
the right to veto any amendment, any plan which the 
General Assembly should propose as an alternative to his 
plan, or does this give the General Assembly a new way 
of enacting a law without reference to the gubernatorial 
veto? 

THE CHAIRMAN: Dr. Bard, in earlier discussions 
I think reports of your Committee, but maybe of the 
Executive Department Committee, someone suggested that when 
ever we mean to refer to action by the General Assembly 
that is subject to gubernatorial veto, that we should 
say General Assembly by law shall do this or that, carry 
that thought. Maybe that would be appropriate here. 

DR. BARD: We are saying subject to guber- 
natorial veto. 

THE CHAIRMAN: This is another matter. 

DR. BARD: Our Committee thought if the plan 



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fulfilled all the requirements, I think that ought to be 
opened up to the Commission. If the Commission feels 
otherwise -- 

THE CHAIRMAN: You might make that clear. 

JUDGE ADKINS: I don't think your language is 
clear because later on you say enacted into law. 

MR. CLAGETT: Is the question now we are 
talking about, if there is a difference between the 
Governor's plan and the General Assembly's plan? 

THE CHAIRMAN: No, the question is whether or 
not the General Assembly in enacting its plan can enact 
a plan that is not subject to veto. 

MR. CLAGETT: If it enacts the Governor's plan, 
then we are talking about an absurdity. If it enacts 
one which is completely different and contrary to what 
the Governor wants , then we have a point. 

THE CHAIRMAN: So that is the question. Let's 
find out first what the Committee intends to recommend; 
then we can deal with the amendment. 

DR. BARD: The logic would be against permitting 
the Governor's veto because otherwise the Governor would 



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1 have his say anyway, and the intent here — 



2 



THE CHAIRMAN: Subject to being overridden. 



3 DR. BARD: Right. The intent here is to urge 

the General Assembly to come up with a good plan. That 
5 is the intent. The moment the confrontation takes place, 
" the Governor could possibly have his own view. At least 
■ this was our intention. 
8 THE CHAIRMAN: The recommendation of the Com- 

* mittee, then, as I understand it, is that the plan to be 
*" submitted to the General Assembly is to be submitted by 
it without being subject to gubernatorial veto? 

DR. BARD: Of course, it would be subject to 

13 review by the Supreme Court. 

14 THE CHAIRMAN: I understand. Mr. Case? 

15 MR. CASE: Mr. Chairman, in discussing this 

16 idea some time ago, I thought it would be based on the 
11 idea of a strong executive and the work that could be 

done by and for him in proposing the plan. You will re- 

19 call that there was some conversation at the Easton 

20 meeting about a blue ribbon commission or committee being 

21 appointed by the Governor who would then take that work, 



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and it would be that work product primarily which would 
be the Governor's plan. So I think there is every reason 
to favor in this situation the Governor's plan over that 
which might be concocted by the Legislature. The legis- 
lative process in this whole scheme, as I visualize it, 
was really a matter of check and balance. 

If the Governor's plan based upon the best 
advice he could get is really so cockeyed to the Legis- 
lature that it isn't acceptable, then of course, the 
Legislature could modify it, and if the Governor felt 
strongly about it, he could veto it, and the Legislature 
could then go ahead and pass it over his veto if it could. 
But the whole idea of this proposal, the whole corner- 
stone of it, namely, that if the Legislature does not go 
then the Governor's plan does become final, the whole 
meat of this idea is the strong executive and the advice th^t 
he would get in proposing his plan in the first place. 
Therefore, it seems to me that if the Committee proposes 
that the plan not be subject to the Governor's veto, at 
least as far as I am concerned, it weights down the 
theory of the proposal. 



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1 DR. BARD: May I answer that? 

2 THE CHAIRMAN: Yes. 

3 DR. BARD: You will remember if you go back in 

4 the minutes, Mr. Case, that at one time this Committee 

5 thought of a blue ribbon committee, and the Commission 

6 j itself spoke rather strongly on the fact that the key to 

7 the plan was the authority of the Legislature, the real 

8 key to this was the legislative decision. 

9 Now, if you want to go back to an earlier deci- 

10 sion which this Commission has made, I think we might well 

11 open it up, but it was our feeling that this Commission 

12 felt rather strongly, and this portion that you are now 

13 referring to had been settled at the last meeting, desired 

14 the original jurisdiction and authority to lie with the 

15 Legislature. 

16 On the other hand, if the Legislature were not 

17 so stirred to do this, then the Governor would come in, 

18 in reverse of what you are saying. I might add earlier, 

19 early in our deliberations our thoughts were along your 

20 lines, but this Commission stopped it. 

21 MR. CASE: Dr. Bard, the whole idea was 



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1 


engendered at Easton as a result of long debate of which 






2 


I played some part, and I know how I felt then and how I 






3 


feel now. It is, very frankly, that the Governor, well, 






4 


exactly what I said — the idea, I think you have missed 






5 


the point here, in getting the Governor's plan approved, 






6 


get it off dead center. It is a proposal of motion rather 






7 


than a proposal of substance. It never was my idea that 






8 


this whole matter should be turned over in the first 






9 


instance to the Legislature. 






10 


DR. BARD: This Committee stood for a blue 






11 


ribbon committee earlier. 






12 


THE CHAIRMAN: Mr. Clagett? 






13 


MR. CLAGETT: Mr. Chairman, let us assume for 






14 


the moment that the Governor does come up with a good 






15 


plan. The General Assembly then decides they don't like 






16 


it, and they come up with -their plan. The Governor 






17 


then vetoes the General Assembly plan, can't the General 






18 


Assembly then override the Governor's veto? 






19 


THE CHAIRMAN: That would be possible under 






20 


what Mr. Case suggests, and under what Dr. Bard is suggest- 






21 


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right of the Legislature to override the veto if it is 
to be subject to veto. 

MR. CLAGETT: So if we provide it not be sub- 
ject to veto, then it would become law on petition to the 
Supreme Court? 

THE CHAIRMAN: Yes. 

MR. CLAGETT: And we would get some action with- 
out an intolerable waste of time. 

THE CHAIRMAN: Mr. Sayre? 

MR. SAYRE: My interpretation is the way 
Mr. Case stated it, and the way we have in the minutes 
at Easton, it was moved by Mr. Case, seconded and unan- 
imously resolved that that Section dealing with reappor- 
tionment should provide within a specified period after 
the publication of the results of the decennial census, 
the Governor must call the Legislature into session and 
present a redistricting plan. There was no reference to 
the veto, but I am sure that was implied. 

THE CHAIRMAN: Mr. Martineau? 

MR. MARTINEAU: Mr. Chairman, it seems to me 
the way to handle this problem would be to require the 



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legislative proposal to be adopted by either three-fifths 
or two-thirds without getting into that, in the first 
instance to override what the Governor has proposed, and th|e 
you wouldn't get involved in the problem of coming back 
later on and having the Legislature override a possible 
gubernatorial veto. 

To satisfy both here and not waste any time 
in getting this plan either adopted or not adopted 
by the Legislature, to require that the plan be adopted 
by a higher vote and not of it subject to veto. 

DR. BARD: That is okay. 

THE CHAIRMAN: Any further discussion? 

JUDGE ADKINS: It prevents legislative re- 
finements on what might otherwise become a good plan. 
It becomes on a take-it-and-leave-it basis. I think the 
Governor ought to have the veto, but the Legislature 
ought to have the right of amendment. 

THE CHAIRMAN: Mr. Miller? 

MR. MILLER: The only thought I have, Mr. Chair- 
man, is that if we did have laws passed by some peculiar 
device which indicates passing up the veto in certain 



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cases, we are really confusing the procedure. It seems 
to me very simple that if the legislative plan is agree- 
able to the Governor, he can sign it. If he doesn't 
like it, he can veto it, and if they override his veto, 
it still becomes law unless it is unconstitutional. So 
I don't see any reason for having anything to go through 
the Legislature that is beyond the veto. 

THE CHAIRMAN: Any further discussion? 

DR. BARD: We wouldn't hold too strongly on 
the veto if you want to include it. 

THE CHAIRMAN: I want to take a vote and move 
on. Any further discussion on it? Then, the question 
will arise on whether or not the action by the Legislature 
under Section 5 is to be subject to veto or is not to be 
subject to veto since the Committee had recommended that 
it not be subject to veto a vote -- will be a vote that 
the legislative action be not subject to veto. A vote 
Nay will be a vote that the legislative action be subject 
to veto in the normal course. You ready for the question? 

All in favor, signify by saying Aye, a vote 
Aye is a vote for action not subject to the veto. Those 



-op pos c e 



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1 (A chorus of Noes.) 

2 THE CHAIRMAN: The Noes have it. Now, that 

3 requires a redrafting of that part of the Section. Is 

4 there any further comment as to Section 5? I have a 

5 question that troubles me a little bit with respect to 

6 the last sentence. Is it intended that the Supreme Court 

7 under this sentence is to have a political as well as 

8 judicial power, by which I mean that the Court is to have 

9 the power to redraw the lines in accordance with what it 

10 might think is politically desirable rather than merely 

11 be limited to determining whether the gubernatorial or 

12 legislative action is in conformity with constitutional 

13 requirements. 

14 DR. MICHENER: The other thing, of course, is 

15 there may be no action at all, so the Court has to do this 

16 of necessity. The Governor has not presented a plan, 

17 and the Legislature has not adopted one. 

18 THE CHAIRMAN: I can understand that, but I 

19 did not understand the original suggestion that was made 

20 at Easton that the political power was to be conferred 

21 upon the Court. I am not sure that this sentence does 



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because it depends on what meaning you are giving to the 




2 


words, appropriate relief. 




3 


I would like to know what the Committee in- 




4 


tended. I take it from your answer that the Committee 




5 


intended that the Supreme Court was to have both the 




6 


political as well as the judicial power in this instance. 




7 


MR. CLAGETT: You remember the question did 




8 


come up that when the Supreme Court took jurisdiction, 




9 


it would have a full and complete jurisdiction to grant 




10 


any and all relief. So I would interpret, appropriate, 




11 


to be any and all and include the redrawing of the lines. 




12 


THE CHAIRMAN: The question I put up is not 




13 


quite that. What I am thinking of is the situation where 




14 


the Governor or the Legislature may have presented a plan 




15 


that is constitutionally good but in drawing the lines, 




16 


the Supreme Court or anybody else may differ as to whether 




17 


a particular line should be here or there. Now, is it 




18 


intended that the Supreme Court shall have jurisdiction 




19 


only to review to determine that the plan does or does not 




20 


meet the constitutional requirements or go beyond that and 




21 


draw a plan which it thinks is politically expedient? 




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Mr. Sayre? 

MR. SAYRE: Mr. Eney, the way I thought we 
had interpreted this was to leave up to the Court, number 
one, as to whether or not it is constitutional and that 
if it were not, it could take whatever action it deemed 
appropriate, meaning that if there is time, it can toss 
it back to the Legislature. If there is not time, it can 
draw its own line. 

THE CHAIRMAN: I have no difficulty with that, 
but suppose the Court decides that the plan is consti- 
tutional? 

MR. SAYRE: Then I don't think we intended 
that it have that power. 

THE CHAIRMAN: This is the question I raised. 

Mr. Miller? 

MR. MILLER: As one Member of the Committee, 
it never occurred to me that the Court would have any 
jurisdiction except in the event that it had no plan it 
considered constitutional before it. 

DR. BARD: Right. 

MR. MILLER: In which case, it could draw a 



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new plan. But if the legislative plan or the Governor's 






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plan is constitutional, it wasn't my thought that the 






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Court would have anything to do with it. 


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DR. BARD: Right. 






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THE CHAIRMAN: Mr. Bond? 






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MR. BOND: I would like to ask a question on 






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this. Is it contemplated by any Member of the Commission 






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that the Court would have original jurisdiction without 






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a petition before it? 






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THE CHAIRMAN: No. 






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MR. CLAGETT: Mr. Chairman, I have one other 






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question. Suppose the Governor has drawn up a very good 






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plan, but let's suppose the General Assembly comes up 






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with a better plan and both of them are constitutional, 






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then it gets petitioned eventually to the Supreme Court, 






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cannot the Supreme Court, having taken jurisdiction, blend 






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the two plans, if it does not involve actual change of 






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boundary lines? 






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THE CHAIRMAN: That is part of the question 






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that I suggest to you, that if it is intended that this 






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last sentence give the Supreme Court jurisdiction only to 








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1 grant relief if it determines the plan before it is not 

2 constitutional, that the Section should so state. As 

3 for instance, by saying the Supreme Court shall have 

4f original jurisdiction to review the districting and legis- 

5 lative apportionment of the State, and if it find the 

6 statement is not in conformity with the Constitution, to 

7 grant appropriate relief. 

8 DR. BARD: Good correction. 

9 THE CHAIRMAN: But I am not clear as to what 

10 the Committee intends. 

11 DR. BARD: Just what you said. 

12 THE CHAIRMAN: Is there any disagreement with 

13 that view? 

14 MR. CLAGETT: I disagree with that view. I 

15 understood and did so vote that we were, when the Supreme 

16 Court took jurisdiction just as the United States District 
IV Court took jurisdiction, it could come up with a plan, 
1& and it would be hoped that that plan would certainly be 
1 constitutional as well as appropriate; and my understand- 
^ ing of the word, appropriate, was that it had full and 
r - complete original jurisdiction and original has got to 



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mean just that. 






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THE CHAIRMAN: No, I don't think so. Original 






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simply means it is not appellate, I think, in this sense, 






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but do you advocate the position that if the plan or 






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plans before the Court do meet the constitutional standards 






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that the Court nevertheless should have the power to 






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write a new plan? 




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MR. CLAGETT: Yes. 






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THE CHAIRMAN: Does anyone else share the view? 






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If so, we will put it to a vote. You seem to stand alone. 






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DR. BARD: When you use the word, constitutional 


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you are referring to the United States Constitution 






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as well as the Maryland State Constitution? 






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THE CHAIRMAN: I assume you would have to. 




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DR. BARD: Then you said, according to this 






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Constitution. 






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THE CHAIRMAN: I am sorry. 






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DR. BARD: We would like for it to say — 






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THE CHAIRMAN: I did not mean that more or less 






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offhnnd language. 






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DR. BARD: I realize that. 








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THE CHAIRMAN: Mr. Sykes? 

MR. SYKES: I would like to suggest one 
practical problem that might arise under the 10-day 
limitation, that is anybody who would like the Federal 
Court to review the constitutionality of a State plan 
could defer the filing until 11 days, and then go into 
the Federal Court on the grounds of constitutional rights 
have been violated, and the State provides no appropriate 
form or procedure for vindicating the constitutional 
rights. That would also prevent the Federal Court from 
staying its hand and referring the thing to the Maryland 
Court because Maryland provides no machinery whatever for 
accepting the reference on any such absenteeism. I ques- 
tion under those circumstances whether a fixed time limit 
should be written into the Constitution or whether the 
question of timeliness should be determined on general 
equitable principles. 

THE CHAIRMAN: .Dr. Bard or Dr. Michener? 

DR. MICHENER: The Committee felt it was impor- 
tant to have a fixed and early date to get this settled 
and to speak to your question in particular, such a person 



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1 cannot prevent hundreds of other folks from filing peti- 

2 tions . There have to be uniform decisions before the 

3 situation could arise. Anyone can file a petition in the 
^ District Court's jurisdiction. 

5 MR. SYKES : I am not sure that answers the 

" question. I don't know what the answer is. 

7 THE CHAIRMAN: I think Mr. Sykes ' point would 

8 be that if there was only one person or one group who 

9 sought to overturn the plan on constitutional grounds 
and that person or group wanted Federal Court action, 

H he could insure it by going beyond the deadline that you 

** fix in the statute, and he raises the question of whether 

13 the deadline is more important than insuring that the 

14 State Court have first crack. 

15 DR. MICHENER: I would doubt the situation would 
IS arise whether only one person would be upset by a redis~ 

17 tricting system. 

18 MR. MARTINEAU: I think we have pretty good 
of 

19 evidence/that in the constitutional districts. 

20 THE CHAIRMAN: You want to submit the question, 

21 Mr. Sykes? 



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1 MR. SYKES: I would move that the specific 

2 time limit be deleted, and the word, time, be inserted 

3 in front of, petition, instead. I am afraid that this 

* gives a possibility for a tactical choice to Federal 

5 courts over the State courts and another instance of sub- 

" ordination of State to Federal power by people who are 

' wisely counseled and who feel there may be procedural 

® or other advantages in getting the case into Federal 

• Court and keeping it completely out of the State. So I 
*■•* make the motion. 

11 THE CHAIRMAN: Is there a second? 

12 MR. CLAGETT: I second it. 

13 THE CHAIRMAN: Mr. Sykes, without restating 
1^ your reasons, would you elaborate on the second point of 

15 your part a little bit for the benefit of the Commission 

16 who are not lawyers and perhaps not familiar with the 
1? legal principle announced by the Supreme Court to which 
1® you refer? 

19 MR. SYKES: You mean the extension point? 

20 THE CHAIRMAN: The question of whether the 

21 Federal courts would have jurisdiction if there were a 

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remedy still available in the State courts and otherwise. 

MR. SYKES: Well, the Federal courts are 
charged with vindicating rights under the Federal Con- 
stitution and in the last congressional redistricting 
case which Al Scanlan and I were both in, the Federal 
courts redistricted the State for the purpose of congres- 
sional representation. 

In other States, such as in Illinois, the 
Federal Court redistricted the State in conjunction with 
the State's highest court, and there is a doctrine in 
the Federal law that says on matters of particular concern 
to States, the Federal Government will stay its hand and 
give the State an opportunity to take whatever action the 
State can take to assure a result consistent with State 
processes that is also consistent with the requirements 
of the Federal Constitution. 

They don't want to rule on a Federal constitu- 
tional question until the State proposes making it ab- 
solutely mandatory to so rule. Now, what you have in this 
situation is if a case is filed in the Federal Court, the 
Federal Court may stay the proceedings until the State 



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Court has had a chance to pass upon it. 

If the State Court has such a chance, but if 
the State Court's jurisdiction is limited so that there 
is nothing the State Court can do to pass on the problem 
because as here the 10 days expire, then the Federal 
Government will have to go ahead and take complete juris- 
diction and apply its own procedure and decide the case 
on its own . Does that answer the question? 

THE CHAIRMAN: Yes; any further comment? 

MR. HAILE: I don't recall any situation where 
there was a time limit on a person's right to resort to the 
courts the question of constitutionality of a law passed 
by the Legislature. The only purpose of this sentence 
was to go give the Supreme Court original jurisdiction. I 
think by eliminating the words, no later than 10 days, 
we still are accomplishing our purpose. 

THE CHAIRMAN: Any further comment? 

DR. BARD: I thought Mr. Sykes had a substitute 
phrase there. 

THE CHAIRMAN: Yes, his motion was to substi- 
tute after the word, upon, and before the word, petition, 



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the word, timely, and to strike out the words, filed 





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no later than 10 days after the enactment of the plan or 




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after the final date for action set forth above, which- 




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ever first occurs. 




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MR. CLAGGETT: What does that mean now? How 




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long a time does timely mean? 




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THE CHAIRMAN: Whatever the Court would decide. 




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MR. CLAGETT: Very well. 




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THE CHAIRMAN: Any further discussion? You 




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ready for the question? The question arises on tbs motion 




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to amend the last sentence of Section 5 to insert the word, 




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timely, after the first word, upon, and to delete the 




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W)rds , filed no later than 10 days after the enactment of 




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a plan or after the final date for action set forth above 




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whichever first occurs. 




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As thus amended, that sentence would read, 




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upon timely petition of any eligible voter, the Supreme 




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Court of Maryland shall havebriginal jurisdiction to 




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review the districting and legislative apportionment 




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of the State and to grant appropriate relief subject to 




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the amendment in the latter phrase that was heretofore 






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moved. Are you ready for the question? Those in favor 


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of the motion, please signify by a show of hands. 




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The motion is carried, 18 to nothing. 




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Now, Dr. Bard, you are going to draft appro- 




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priate language in the last two lines? 




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DR. BARD: Yes. 




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THE CHAIRMAN: Any further discussion? If not, 




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we move to the consideration of Section 6. 




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DR. BARD: Section 6, marked a change in the 




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language only. Instead of saying, the Members of the 




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Senate and the House of Delegates, we now say, the Members 




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of the General Assembly. No significant change in 6. 




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THE CHAIRMAN: Any question or comment? If 




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not, we proceed to consideration of Section 7. 




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DR. BARD: Section 7. 




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THE CHAIRMAN: Is this the place where there 




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is some material left out? 




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DR. BARD: Yes, the commentary has been deleted, 




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and the comment that is noted here belongs to Section 10 




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which you will find back of the book. Let me read the 




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comment on Section 7. 






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THE CHAIRMAN: What is omitted after the typing 
of Section 7 is the comment on Section 7 and Section 10, 
the comment at Page 4 pertains to Section 10. 

DR. BARD: Yes, sir. Suppose I read the comment 
on Section 7. This Sections reads with the exception of 
the requirement for two-thirds vote, and please note that, 
rather than the three-fifths vote to extend the regular 
session as it was reviewed and approved by the Commission 
in its August meeting, the Committee made the change 
pursuant to its recommendation that all extraordinary 
majorities be set at two-thirds. Now, since the Committee 
lost that overriding recommendation, you will want to look 
at the two-thirds. 

Apart from that we embodied everything that 
was recommended at the last meeting of the Commission. 
Suppose I now read Section 7. 

The General Assembly may continue its session, 
so long as in its judgment the public interest may require, 
for a period not longer than seventy days in each year; 
provided however, that by a two-thirds vote of each House 
a session may be extended for an additional period not 



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longer than thirty days in each year. 

The Commission has already agreed to the ex- 
tension. The governor may convene the General Assembly in 
special session at any time. That is not new. Major 
changes that embodied from three-fifths to two-thirds 
in connection with extending the session. 

THE CHAIRMAN: Any comment? Mr. Martineau? 

MR. MARTINEAU: Mr. Chairman, I wonder at the 
advisibility of leaving in language as, so long as in its 
judgment the public interest may require. That is 
really superfluous. 

DR. MICHENER: That was discussed in Committee 
meeting. 

DR. BARD: We agree that it is superfluous, 
but Mr. Case, would you like to comment? 

THE CHA IRMAN : Mr . Bond ? 

MR. BOND: Is this two-thirds of the Members 
present or two -thirds? 

THE CHAIRMAN: Before you get to that, let's 
dispose of this other. The suggestion is made that in 
the second and third lines, the phrase, so long as in 



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; 


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its judgment, the public interest may require, could be 


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omitted. Is there any further comment or discussion? 




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DR. BARD: We, too, feel that it is superfluous. 




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THE CHAIRMAN: Mr. Miller? 




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MR. MILLER: I think it is desirable to have 




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it there. It doesn't often happen, but if the Legislature 




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wanted to adjourn in 50 days, I think it ought to be in 




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position to do it. 




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THE CHAIRMAN: That would be permitted. 




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DR. BARD: Not longer. 




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THE CHAIRMAN: It simply would be deleting 




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from the Section any statement of a reason for the action. 




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It wouldn't affect the action. Any further comment? 




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The Committee then, I understand, wants to delete the 




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phrase, so long as in its judgment the public interest 




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may require? 




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DR. BARD: If we be so permitted. 




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THE CHAIRMAN: Any objection to that? 




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All right, consider that deleted. Now, Mr. 




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Bond, as to the two-thirds question. 




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MR. BOND: I was just asking whether two- thirds 






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of the Members present on the floor at some period or 
two-thirds of the elected Members of the House or two- 
thirds Members of the Legislature. 

THE CHAIRMAN: What is intended by the Committee 

DR. BARD: An earlier decision of this Com- 
mission, we got the feeling that it meant of each House, 
not those present. 

THE CHAIRMAN: The whole membership. 

MR. BOND: I don't think the language is 
specific on that point. 

THE CHAIRMAN: We will have to put the question 
up whether it is two-thirds or three-fifths. 

Mr. Delia? 

MR. DELLA : Now, we revert back to the three- 
fifths conception, and this would be changed from two- 
thirds to three-fifths? 

THE CHAIRMAN: No, we have two questions to put 
up to a vote, whether it should be a ratio of the whole 
membership or those present, and if so, what should it 
be? That is what we are discussing now. 

MR. BOND: I should think it should be a two- 



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thirds, whatever fraction the Commission wants, of the 
entire Legislature, not of those present. 

DR. BARD: This is the way we wrote it. 

THE CHAIRMAN: Any further discussion? All 
right, then the first question to be put up is the ques- 
tion of whether the ratio, whatever it may be, should 
be a percentage of the whole membership, the total elected 
membership, or the percentage of those present. The 
Committee recommends that it be a percentage of the 
whole membership; a vote Aye is a vote in favor of the 
ratio of the whole membership, and a vote No would be a 
vote for the percentage of those present. Ready for the 
question? Those in favor of the Committee's recommenda- 
tion that it be a percentage of the whole membership, 
signify by a show of hands. 

Contrary? The motion is carried, 17 to 1. 
Now, the next question to consider is whether the ratio 
should be two-thirds or three-fifths, or some other number. 
Is there any further discussion of that question? 

DR. BARD: The only thing I would like to say 
is, we felt it was extraordinary. However , I don't want 



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to go back to the other question. The Commission has 
felt that there are two kinds of extraordinary actions, 
which kind this is, I think, is the question you are 
voting on. 

MR. DELLA: I think I was going to say the 
same thing. If this would be an extraordinary situation 
to a great degree, then I think it should come under the 
three-fifths category rather than two-thirds. 

THE CHAIRMAN: Any further discussion? Anyone 
suggest a ratio other than two-thirds or three-fifths? 
Ready for the question. The Committee's recommendation is 
for two-thirds, a vote Aye would be a vote in favor of 
two-thirds; a vote No would be a vote in favor of three- 
fi-fths. This is in each instance a percentage of the whole 
membership, entire elected membership. You ready for the 
question? A vote Aye, two-thirds, those in favor, signify 
by a show of hands. 

Contrary? The motion is carried, 14 to 5. 
It remains at two-thirds. 

Dr. Bard, any further question on this Section? 

DR. BARD: No, sir. 



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THE CHAIRMAN: Any further comment? 

DR. BURDETTE: May I ask the Chairman, is the 
Committee satisfied with getting the Legislature in ses- 
sion at the same time? Terms begin under Section 6 on 
the third Wednesday January next following their election, 
but unless a Legislature prior to the adoption of this 
Constitution fixes the time for a meeting, I don't really 
see any way of getting them in session except by call of 
the Governor. Is this intentional? 

THE CHAIRMAN: You mean for the first session 
or every session? 

DR. BURDETTE: If they don't fix a law, it 
may be every time. I may be mistaken. In glancing over 
the document, I don't see any time for them to convene 
except as otherwise provided for by law. 

THE CHAIRMAN: Do you understand Dr. Burdette's 
question, Dr. Bard? 

DR. WINSLOW: I just prompted Mr. Burdette to 
raise the question. At one point in deliberation of this 
Committee, it appeared the session was to begin on the 
third Wednesday of January and continue as long as it 



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- pleased. That, continued as long as it pleased, got 

: eliminated, and I am afraid the date got eliminated at 
the same time, and I think this is perhaps an oversight 
that the date of the session was not included in this 

5 Section that we have just dealt with. 

THE CHAIRMAN: Since so much hinges on this 

presentation of the budget and many other things, should not 
the Constitution fix the opening date at least at the 

* beginning of the annual session? 

10 DR. BARD: I would think so, yes. 

11 THE CHAIRMAN: Would the Committee want to make 

12 a recommendation that it be the beginning of the terms 

13 of the Members elected? 

14 DR. BARD: I would think so, since it is now 

15 clarified. 

16 MR. BROOKS: That has been the clear intent 

17 all the way through. 

18 DR. BARD: It has been the intent, but you 

19 would think an actual statement of it would be authorized. 

20 MR. MINDEL: It now so provides. Section 14 
says, the General Assembly shall meet on the third Uednes- 



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day of the following January. 

THE CHAIRMAN: I take it the Committee would 
amend Section 7 to provide that the annual session would 
begin on the third Wednesday of January of each year; is 
that correct, Dr. Bard? 

DR. BARD: Yes. 

DR. BURDETTE: Why wouldn't the Committee be 
willing to carry the language unless otherwise provided 
by law so if we change the whole budget structure in 
Maryland, we wouldn't have to amend the Constitution? 

THE CHAIRMAN: Dr. Bard, your nod of the head 
doesn't get in the record. 

DR. BARD: Dr. Winslow, since you put this 
in motion, where have you been on this question, since 
you have put in this motion, how do you feel about that? 

DR. WINSLOW: I feel it should go in the first 
line of Section 7, which would say, the General Assembly 
shall meet on the third Wednesday of January or as other- 
wise provided by law and may continue its session so long 



as « 



DR. BARD: Shall convene? 



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1 THE CHAIRMAN: VJell then, I take it that the 

2 recommendation of the Committee would be to amend Section 

3 7 to provide that, the General Assembly should convene 

4 on the third Wednesday in January each year unless other- 

5 wise provided by law. Is that correct, Dr. Bard? 

6 DR. BARD: That is correct. 

7 THE CHAIRMAN: Any objection? If not, we will 

8 consider the Section as so amended. 

9 DR. BARD: I am sorry about Section 10 not 

10 appearing on Page 4, but if you look on Page C — 

11 THE CHAIRMAN: Just a second. Is there any 

12 further question by anybody with respect to Section 7? 

13 Mr. Sayre? 

14 MR. SAYRE: This is just a question, I interpret 

15 Section 7 not to include year round meetings of committees 

16 if that could be determined, has that been determined? 

17 THE CHAIRMAN: Any comment, Dr. Bard? 

18 DR. BARD: The recorder had my ear for the 

19 meetings. 

20 THE CHAIRMAN: Mr. Sayre says he would inter - 

21 pret Section 7 not to prevent committees of the Legislature 
mPPti no at- any tiTPP *" Hip y^ar . Dn you rnncur? 

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DR. BARD: We certainly concur with that, yes. 

THE CHAIRMAN: Any further comment or question a 
Section 7? If not, proceed to Section 10. 

DR. BARD: If you look at Section C, you will 
find Section 10 stated. It reads, Any vacancy in the 
General Assembly shall be filled by appointment by the 
Governor, provided, however, that a party member shall be 
succeeded by a member of the same party, and provided 
further that the person so appointed shall serve only 
until the next biennial general election, at which time 
any remaining portion of the unexpired term shall be 
filled by election. 

Now, the commentary makes clear the fact we 
covered this at the last meeting. I would like you to 

4 

note the wording. This means that if a person who is 
registered as an Independent and is elected, then the 
Governor has the privilege of appointing one of his choice 
because he is not a party member, and we have to take care 
of that situation, and we felt that this took care of it; 
and secondly, you will note that the individual serves 
until the next biennial general election, which would be 



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the next congressional election, not necessarily guber- 
natorial. 

THE CHAIRMAN: Any question? Any comment? 

DR. JENKINS: Dr. Bard, what happens under 
this provision if, let's say the next general election is 
November 5. A Member dies on October 5, and there is not 
time to get him in the mechanics of the election. 

THE CHAIRMAN: The practical answer is the 
Governor wouldn't appoint. 

JUDGE ADKINS: That isn't the question. The 
question is, how do you get somebody on the ballot? 
Suppose he doesn't appoint? 

THE CHAIRMAN: Dr. Bard? 

DR. BARD: Dr. Wins low will comment on this. 

DR. WINSLOW: I think the appointment would have 
to be made- early enough so that the machinery of the 
general election could be put into operation. In other 
words, that if it were October 5 or November 5, this is 
an impossibility because you can't get his name on the 
ballot. I think the calendar of the election would take 
care of this. 



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THE CHAIRMAN: Dr. Wins low, Judge Adkins ' 
question was a little beyond that, and he suggests 
Dr. Jenkins' question was that irrespective of appoint- 
ment, how would one who desired to get on the ballot 
get on the ballot? I take it that the language as 
drafted, he could not because there could not be any 
mechanics by which one could get on the ballot unless and 
until there had been an appointment by the Governor under 
the Section as drafted. 

DR. BARD: This is what we intended. We have 
a feeling that if anything was to occur under conditions 
of this sort, the Governor's appointment, at least this 
is my feeling, the Governor's appointment would tend to 
be a better one than one that might be rushed through 
with none of the possibilities because there would be 
one day, let us say, involved in there, too late for the 
machinery to come into being. 

DR. JENKINS: I think this is a legal question 
It may provide a basis for litigation. 

THE CHAIRMAN: It seems to me that under the 
language as written, if the Governor made an appointment 



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five days before the election, the person served for five 






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days, and the office is vacant, he can make another 






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appointment after the election. Is that what is intended, 






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DR. WINSLOW: I' should think so; otherwise the 






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machinery for general elections could not apply. You 






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would have a vacancy. 






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THE CHAIRMAN: Dr. Burdette? 






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DR. BURDETTE: I would so construe it, but 






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myself, I think I would have written this again without 






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final language after semicolon, and provided further that 






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the vacancy, or the remainder of the term should be 






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filled at the next biennial general election. I am not 






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using exact language, but this would take care of the 






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situation which I would rather do than if the Governor 






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wouldn't appoint anybody, there would still be an election. 






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THE CHAIRMAN: Dr. Bard? Just a second, you 






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want to comment on the suggestion of Dr. Burdette? 






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DR. BARD: I think he really commented. His 






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language as stated wasn't very much of an improvement 






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over what we have. 








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THE CHAIRMAN: I don't think he was trying to 
do that. He was suggesting an addition as you have drafted 
the Section, you do not permit one to one for election 
without appointment by the Governor. He is suggesting a 
positive provision that one can run for election if the 
Governor does not make the appointment. 

DR. BURDETTE: I was trying language that did 
both. 

THE CHAIRMAN: Did you want to comment on the 
principle? 

DR. BARD: The principle is important, I think, 
yes. If we could work it in, I think we can, it is good. 

THE CHAIRMAN: Judge Adkins? 

JUDGE ADKINS: I suggest we clarify the point 
that Dr. Jenkins raised by using the language that is 
used in connection with the city judge principle and add. 
here, shall serve only until the next biennial general 
election occurring more than 90 days after the vacancy 
occurs, if 90 days is adequate; I am not sure it is. 
Then if you had the situation which Dr. Jenkins suggested 
occurring, a man could be appointed to serve until the 



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next, the second successive biennial election. 

THE CHAIRMAN: Dr. Bard or Dr. Michener , 
would you comment on that? 

DR. BARD: It is certainly worth considering. 

THE CHAIRMAN: That still doesn't reach 
Dr. Burdette's point, and I am not clear, you say it is 
an important question, but what would be the recommenda- 
tion of the Committee? 

Mr. Delia? 

MR. DELLA: Dr. Burdette's point was the person 
would be appointed by the Governor, would be on the 
ballot approved by the people. He would not have any 
candidates running against him. 

MR. CASE: What is his point? Will somebody 
state it? 

THE CHAIRMAN: His point is, if the Governor 
makes no appointment, that there is nothing in the 
Section which gives anybody the right to be nominated and 
stand for election. Suppose there is a vacancy six months 
before an election. This Section talks only about the 
vacancy being filled by appointment. It doesn't say 



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anything about the vacancy being filled by election, 
either at the expiration or anything else. Is that your 
point, Dr. Burdette? 

DR. BURDETTE: Yes. 

DR. MICHENER: What we are trying to put here wa 
the basic mechanism with the idea that much we have to do 
has been to supplement by legislation. We assumed this 
provided for an election, and would be provided by statute. 

THE CHAIRMAN: That is not Dr. Burdette' s point. 
All he is saying is that you provide here a means of fill- 
ing a vacancy for a part of an unexpired term by appoint- 
ment. You do not provide that the vacancy after the 
next general election shall be filled by election. The 
implication is, it is. His point is, you don't specifical- 
ly state that the vacancy existing after the next general 
election shall be filled by election. 

DR. BURDETTE: My suggestion came from the 
Chairman's comment which seemed very clear that if a per- 
son, for example, should resign from the Legislature in 
April of an election year, that the Governor would simply 
wait until, after it were too late to get on the ballot, 



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and then of course, the Governor would make the appoint- 
ment for the entire remaining two years, but in order 
to avoid that quite real possibility that you brought up, 
Mr. Chairman, we should simply provide for an election for 
the. remainder of the term. 

DR. WINSLOW: Why does not the last phrase in 
the Section take care of that, at which time, that the 
next biennial general election, any remaining portion of 
the term shall be filled by election. It doesn't matter 
whether the Governor has appointed or not. 

MR. CASE: That would be my interpretation. 

DR. WINSLOW: I think that Judge Adkins ' 
time schedule may be a desirable thing to put in, in order 
to make sure that there is time for candidates to get 
in. I had assumed that in speaking of the next biennial 
general election, it would be an interpretation of a court 
at least, the time would have to be allowed to get a 
man's name on the ballot. 

THE CHAIRMAN: That is a different question from 
Dr. Burdette. Dr. Burdette, are you satisfied with the 
explanation concerning the last phrase, the last two lines? 



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DR. BURDETTE: Let me say since I am not a 
lawyer, you have brought up a perfectly valid type of 
maneuver . 

THE CHAIRMAN: I think I was in error. 

DR. BURDETTE: All right, I am satisfied. 

THE CHAIRMAN: Any further comment? 

MR. CASE: Mr. Chairman, I have one question 
and one comment . 

The question is, does this Section, Dr. Bard, 
or any of your work product take care of the case 
where a man has been elected, that is the election has 
been held, he's got the votes, so he's elected; but before 
the General Assembly is formed, he dies. In other words, 
he has been chosen for the General Assembly and dies 
before the General Assembly. 

DR. BURDETTE: I think it does take care of it. 
It is a vacancy. They can tend to the vacancy. 

JUDGE ADKINS : He presents himself to be sworn 
in? 

DR. BARD: I would think it would. 

MR. CASE: That was my question. I wasn't sure 



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The next thing is, under the present Constitu- 
tion, of course-, which you are seeking to carry forward 
in this as a matter of theory, the Governor is required 
to appoint from the list submitted by the State Central 
Committee. What are the arguments for or against not 
making a similar provision here? 

DR. BARD: There are a number of arguments 
that came up before our Committee, and I might add that 
this was settled at another time, one, the fact that, I 
don't know why I should bring bad news into this particular 
commentary, but it is our feeling that the State Central 
Committee ought not to be involved in this factor. They 
often do not represent the best segment of the political 
party and most often would not be prepared really to neces- 
sarily give the Governor the best advice. 

You will remember -- at least, I remember -- 
in the City of Baltimore very recently where the- Governor 
just didn't make an appointment because he felt that the 
State Central Committee was going to advise him along 
other lines and he didn't make it. 

MR. CASE: I must confess to you that I think yo 



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are taking a view of maybe as a practical thing, which 
doesn't square with the theory of it because, take this 
example, suppose you have a Democratic Governor but the 
vacancy is caused by the death of a Republican Member. 
I am using this as an example. Now, isn't it better 
to insure at least that the Republican party has somebody 
that people who work in the party, somebody that they 
want rather than to pick a Democratic type representative, 
which is what would happen if this is true. 

I just think that where you have got that 
situation where the Governor is in one party and the 
deceased Member is in another party, there ought to be 
some way to insure that the party's man goes in and not 
the Governor's man. 

THE CHAIRMAN: Wait just a second. We are 
discussing now a question we discussed before. The 
action of the Committee here was the action they were 
directed to take by the Commission previously. Do you 
want to reconsider the action? 

MR. CASE: I guess I wasn't here or had for- 
gotten it. 



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1 THE CHAIRMAN: It was discussed, I think, at 

2 two meetings. You had to leave on the second day, but 

3 there was a full discussion, and the vote was that the 

4 Committee redraft the Section in the form of what is 

5 stated here. 

6 MR. CASE: Well, I don't want to keep pro- 

7 longing it, but I sincerely feel this is a bad thing. 

8 THE CHAIRMAN: Mr. Sayre? 

9 MR. SAYRE: Mr. Chairman, Mr. Case brought up 

10 one point, and the quickest way to state it is, I inter- 

11 pret this Section to mean, number one, the Governor 

12 may appoint as provided by law with number two, the res- 

13 triction that it be a mamber of the party, and I interpret 

14 that to mean Republican, Democratic, vegetarian, social 

15 labor, if it is a party, and that if it is an Independent, 

16 he may choose an Independent or a party man, but he has 

17 complete discretion there which is point 3. Do I inter- 

18 pret that correctly? 

19 THE CHAIRMAN: Except the phrase, as provided 

20 by law, which the Committee directed be deleted and is 

21 not in this Section. 



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1 MR. SAYRE: Except we don't prevent it being 

2 provided by law, as to whether it is from the Central 

3 Committee's list or not. 

4 THE CHAIRMAN: The Constitution under this 

5 Section as drafted is in accord with the action of the 

6 Commission which is that the Governor has the power so 

7 the Legislature could not change it then. That was the 

8 action of the Commission. 

9 , MR. SAYRE: Do I interpret the other part cor- 

10 rectly? 

11 THE CHAIRMAN: I would think so. 

12 MR. CASE: Mr. Chairman, if this matter did 

13 come up on the second day of the iTot meeting, I believe 

14 perhaps there were less than a majority here. 

15 THE CHAIRMAN: No. 

16 MR. CASE: I don't think there were more than 

17 12, if the newspapers are correct. I would , therefore, 

18 because we have a more representative group here tonight, 

19 I will ask that this matter be reopened. 

20 THE CHAIRMAN: There is a motion to reconsider, 

21 Is there a second? 



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MR. HOFF: I will second. 

THE CHAIRMAN: There is no debate on this 
under our rule. All those in favor of reconsidering, 
signify by a show of hands. Contrary? The motion is 
lost, 6 to 9. 

DR. BARD: I have one point. I believe Judge 
Adkins had a good suggestion there. Am I assuming we 
have the authority to incorporate the suggestion? You 
remember it now reads, and provided, this is Section 10, 
persons so appointed shall serve only until the next 
biennial general election occurring more than 90 days 
after the vacancy occurs. In other words, you set forth 
that 90 days. 

THE CHAIRMAN: Is there any objection to making 
that change? 

DR. BURDETTE: I wonder if it may not be a 
little too long, the 90 days. I presume Judge Adkins, 
well, Judge Adkins couldn't be hoping there would be a 
primary, but that is, of course, there would be a primary 
in the event the vacancy had been filled a whole year 
before. But I would like to get enough days so that the 



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1 State Central Committee of the party could put a name on 

2 the ballot as it could on any other vacancy in the case 

3 of a vacancy of a primary. It doesn't seem to me neces- 
^ sary to wait 90 days. Am I wrong about this? 

5 JUDGE ADKINS: Well, I have no difficulty. 

6 in the term 90 days. It seems to me 90 days is sufficiently 

7 short time to get action. 

8 THE CHAIRMAN: It couldn't be much less than 

9 90 days, could it? 
10 DR. BURDETTE: You don't think it could be 60 
H and get on the ballot? 

12 THE CHAIRMAN: Any objection then to the 

15 change that Dr. Bard gave in Section 10? Want to give 

14 us that language again, Dr. Bard? 

15 DR. BARD: Serve only until the next biennial 

16 general election, and this is added, occurring more than 

17 90 days after the vacancy occurs. 

18 MR. HOFF: A query. How many people can run 

19 for the office? 

20 I THE CHAIRMAN: Dr. Bard? 

21 DR # BARD: I would think this would hold true, 



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anybody else who wants. It would be by statute, wouldn't 
it? That is our feeling. 

MR. DELLA: There would be a open election for 
that particular seat. 

MR. HOFF: Is the person selected by his party 
to run for that seat? 

THE CHAIRMAN: Apparently under the same 
machinery as any other election. 

Mr. Mindel? 

MR. MINDEL: I understand the primary occurs 
before the general, anybody could file and run against 
this candidate appointed by the Governor. Maybe this man 
might not want to run himself. The judges now can file 
in the primary elections, can file on both tickets, but 
it seems to me this would be a wide open election pre- 
ceding the general. That is my understanding. 

THE CHAIRMAN: Does that answer your question, 
Mr. Hoff? 

MR. HOFF:. It answers my question if the vacan- 
cy occurs before a primary, but if it occurs after a 
primary? 



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THE CHAIRMAN: That is the provision for the 
amendment, occurring more than 90 days — what was your 
* language? 

DR. BARD: Ninety days after the vacancy 
occurs . 

JUDGE ADKINS: May I make a comment? It seems 
to me, Mr. Hoff's question is answered by this concept, 
that if the primary has already occurred, then the vacancy 
on the ballot would be filled in the normal way in which 
vacancies are filled on the ballot, to wit, by appoint- 
ment of the governing body of the party which under the 
Maryland laws are the State Central Commission or by 
petition as the case may be. If the primary has not 
occurred, the primary would be the effective vehicle 
^ for getting the man on the ballot. 

I 6 MR. SYKES : The question that makes me wonder 

■*•' is what happens if there is a filing by several other 
*® candidates against this candidate whose term expires and 
then he dies and — 

20 THE CHAIRMAN: Who is the "he"? 

21 MR, SYKES: The incumbent dies before his term 

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expires, and 89 days from the biennial general election, 
the Governor appoints a substitute. Now, does that 
substitute have a clear field and have the right to dis- 
franchise the voters from voting for the others who have 
filed in the normal course? It would under this language, 
wouldn't it? 

JUDGE ADKINS: The appointee in no event could 
serve beyond the unexpired terra of the man whom he was 
replacing, and if his term expired, if you are envision- 
ing a situation where people are filing for the new term, 
then the problem wouldn't arise. 

MR. SYKES: I suggest the language doesn't 
say he can serve only the unexpired term in any event. 

THE CHAIRMAN: Well, might we cover that by ask- 
ing the Committee to take that suggestion into considera- 
tion? 

DR. BARD: Certainly. 

THE CHAIRMAN: Any further question on this 
Section? I suggest to you a possible hiatus that you 
might have an appointment. Two years before the end of 
the term, and the person who was appointed would have his 



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: terra expire at the general election, and you would then 
: have no person occupying that position from the time of 
; the general election until the next session of the Legis- 
lature. 

In other words , from November 7 until the 
third Monday of the next January, so perhaps this ought 
to say that the person so appointed shall serve until 
: the next session of the Legislature immediately follov7ing 
9 the next biennial general election or some such language. 

10 DR. JENKINS: Mr. Chairman, may I suggest if 

11 this gets too complicated, we may want to go back to, 

12 as provided by law. I suggest that to the Committee. 

13 THE CHAIRMAN: Any further comment as to Sec- 

14 tion 10? If not, we will move on, and go back to the 

15 body of your Report. 

16 DR. BARD: Section 11, Page 4, you remember 

17 you had asked us to revise this in order to take care of 

18 certain situations where a person might have an oppor- 
: tunity to run for newly created positions or where a 

person might take over a position where the salaries 
- had been increased but not increased by the General Assembly 



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1 I think Dr. Jenkins raised this question at the last 

2 general meeting here, and so we have revised it, V7e think, 

3 and that takes care of the situation. It reads, No 

* member of the General Assembly shall, during the term of 
5 office for which he was selected , be appointed to any 
" office which shall have been created, or the salary or 
^ profits of which shall have been increased, by the 
° General Assembly during such term. 

9 He could assume an office where the profits or 

salary had been increased but not as an action by the 
1 General Assembly. 

MR. GENTRY: The words, or profits, what do 

13 they add to? 

14 DR. BARD: They may be peripheral advantages, 

15 emoluments, they could be expenses, et cetera. 

16 Mr # SAYRE: Commissions, fees. Wouldn't it 
be better to just -- 

18 THE CHAIRMAN: Any further comment or suggestion 



as to Section 11? If not, move to Section 12 on Page 6. 



20 DR # BARD: Section 12. Members of the General 



Assembly shall not be liable in any civil action or crimina L 



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prosecution for any words used in any proceedings of the 
General Assembly. 

What we want to get over here was that they 
were words whether they be spoken or written, whether 
they be in debate in the House or Senate or in Committee, 
so we thought we would just use the term, words, for any 
words to take care of written or spoken and in any pro- 
ceedings to take care of any of the peripheral assign- 
ments tied in with his responsibilities as a Member of 
the General Assembly. 

THE CHAIRMAN: Any question, any comment? If 
not, move to Section 13, Page 6. 

DR. BARD: Section 13. Each House shall be the 
final judge of the qualifications and election of its 
Members, as prescribed by the Constitution and laws of 
the State. Each House shall appoint its own officers and 
determine its rules of procedure, and shall have power 
to compel the attendance and testimony of witnesses and 
the production of records and papers either before such 
House as a whole or before any Committee thereof; provid- 
ing that the General Assembly shall by law protect 



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requested records and papers and the rights of witnesses. 
Each House may punish a Member for disorderly or disres- 
pectful behavior and with the consent of two-thirds of all 
its Members expel a Member. 

We have our two- thirds in there again. There 
are two or three different two-thirds here, Mr. Chairman . 

THE CHAIRMAN: Any question as to the Section? 

MR. BOND: I question the language, the General 
Assembly shall by law protect the rights of witnesses. 
I am not enthusiastic about that. 

THE CHAIRMAN: I am sorry I didn't hear you. 

MR. BOND: I am not enthusiastic about that 
language going into the Constitution. 

DR. BARD: We put this in almost by assignment. 
You will remember that there was a good deal of feeling 
that if we were going to compel the attendance and testi- 
mony of witnesses and production of records and papers, 
that it was felt that the House, that the General Assem- 
bly would have to do this at different occasions, then 
there ought to be the protective element in regard to 
this not getting to be sort of — 



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THE CHAIRMAN: I am not sure your statement, 
you are not happy with it, is it the principle or the 
language used? 

MR. BOND: I think it goes to both, sir. I 
was present at that discussion on this Section, sir. I 
have no such recollection that the Committee was given 
the charge that the General Assembly shall by law protect 
the rights of witnesses. 

THE CHAIRMAN: Let me state my recollections, 
that the Commission decided that there should be provision 
for the protection of records, papers, and rights of 
witnesses. I do not think the Commission decided that 
this should be by law passed by the General Assembly 
necessarily. 

JUDGE ADKINS: Was there a clear decision that 
the power, that the power of subpoena would be included 
in this. I remember there was discussion. But was there 
a clear voted decision on that question, or is that still 
open for debate? 

THE CHAIRMAN: I think it is necessarily open 
for debate with this thought, that the statement of the 



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Commission, as I understood it, was that this Section 
should be so drafted as to protect witnesses and papers 
and documents from unreasonable requests for production 
and so forth. I do not think it was any discussion as to 
how that should be accomplished, whether it should be 
by limitation on the exercise of the power of subpoena 
or by law or what. So I think the whole subject is open 
for discussion. 

JUDGE ADKINS: I should like to suggest that 
the power of compelling testimony of witnesses should be 
only as the result of some extraordinary vote of one or 
both sections of the House. 1 think this is a very 
dangerous and treacherous clause. I think the power of 
Legislature investigation has been subject to great 
abuse at the Federal level in recent years, and I see no 
reason for it to be extended to the State level. I sug- 
gest it be eliminated in its entirely or at least be 
limited to being exercised only as a result of the two- 
thirds vote of the Legislature. 

DR. BARD: I have one general statement to 
make, and that is, that Judge Adkins has set forth, I think, 



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splendidly the dilemma we faced in the subcommittee. We 
recognized there would be occasions when it would be 
necessary to call for the testimony of witnesses and for 
the production of records. We also recognized that there 
was the danger that such power could be abused. In deal- 
ing with these ambivalent concepts, we attempted to kind 
of balance the scale justly on both sides, and this is. 
why \>;e said, providing that the General Assembly shall by 
law protect. 

Now, if you can improve the wording here, well 
and good. This was a very sensitive situation we had 
to deal with, and I would like Dr. Michener to comment on 
this whole question because at our Committee meeting, 
we talked at length in regard to the importance of this 
power and also the importance of safeguarding it. 

DR. MICHENER: I don't want to say much. As * 
I recall from looking through the transcripts, this had 
been discussed at some length before and the arguments 
brought up for and against. The Legislature has to have 
frets in order to draft and form meaningful legislation. 

The Legislature does and can give power to 



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subpoena records from the Executive Department, where 
you are dealing in economic affairs, and you have the 
subpoena power there. It seems rather strange for the 
Legislature to give subpoena power to its agencies and 
not have it itself. 

THE CHAIRMAN: Mr. Clagett? 

MR. CLAGETT: I agree with Judge Adkins that 
this is a rather dangerous clause because it gives a 
certain amount of mandate here that the General Assembly 
shall by law protect, requested recorded and papers and 
the rights of witnesses, and what we are really driving 
at here is not to protect them from any and all demands 
or summonses but only from those which are unreasonable 
abuse; and maybe we can narrow this thing and do what 
we are trying to do here by adding the words, rights of 
witnesses, and after those words, from unreasonable 
abuse . 

THE CHAIRMAN: Any further comment, discussion? 

Dr. Michener? 

DR. MICHENER: I would like to make this one 
comment; many of us are distressed by the growth of the 



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powers of the Federal Government, but oftentimes, this 
is occasioned by the failure of the States to take effec- 
tive action, and anything we do that helps build up the 
powers of the State Legislatures to take effective action 
at the State level is one means to prevent further increase 
in Federal power, and here this has a double edged effect. 
If you restrict the State Legislature, you may keep down 
abuses of their power if this creeps in, but you may be 
encouraging abuses of a similar power at the Federal 
level . 

JUDGE ADKINS: I think the treachery in this 
Section can quite well be envisioned if you can imagine 
the power of subpoena of books and records and personnel 
attendance being granted to each Chairman of each Com- 
mittee of both Houses of the Legislature. 

Now, this can become a very dangerous situation 
unless there is some restraint, and there is none here, 
this provision for protection really means nothing, 
because the protection that a man would need in produc- 
ing records would be the protection of secrecy. You 
obviously can't produce secrecy in the halls of Annapolis. 



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1 If you can, you are doing something I can't do. It is a 

2 dangerous power and should be exercised with great res- 

3 traint, such as requiring two-thirds vote of either 

4 House or both Houses. 

5 THE CHAIRMAN: Mr. Bond? 

6 MR. BOND: I would like to ask Judge Adkins 

7 why he would allocate the word, treachery, to elected 

8 State officials and not to elected Federal officials. I 

9 think in order to properly legislate and ascertain infor- 

10 mation that we should strengthen the Committees of the 

11 Legislature, and I think you have the right of subpoena. 

12 JUDGE ADKINS: I can't deal with the Federal 

13 Constitution. That is not before us. 

14 MR. MINDEL: According to my notes, the last 

15 meeting, I used the language like the matter should be 

16 germane to something before the Legislature. I was not 

17 present at the Committee meeting, but my recollection is 

18 that we wanted to give the Legislature that power provided 

19 it had some matters before it, and if this investigation 

20 or the books and records were necessary to determine this 

21 matter, then we wanted to give them that power. We were 



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1 going to restrict it that way, bat I don't think this 

2 quite accomplishes that. 

3 THE CHAIRMAN: Dr. Michener? 

4 DR. MICHENER: I had this in mind, and this is, 

5 of course, true in the Federal System where the request 
■ for documents has to be pertinent in some matter where 
? Congress can legislate. But the State can legislate in 
° any area, and my feeling was this restriction would not 
9 have meaning. 

10 THE CHAIRMAN: Mrs. Bothe? 

H MRS. BOTHE: Has there been any evidence that 

*** without the power, and I understand the General Assembly 

13 except by grand inquest has not had the power in all 

14 these years, it has been laboring under such a disability 

15 that they ought to be granted it with all the treachery 

16 and all the dangers inherent in it. 

17 MR. BOND: May I comment? 

18 THE CHAIRMAN: Any comment, Dr. Bard, or 

19 Dr. Michener? 

20 DR.. BARD: When Congressman Miller returns, 

21 we would like to have him comment. 



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MR. BOND: I can give one specific example, 
Mrs. Bothe, and that is on the revolving credit bill. 
3 The revolving credit bill, I am told by people on the 

Legislative Committee and also by Attorney Hoff , repre- 



4 



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19 think the debate is in philosophical belief here. The 

: debate is rather in the wording, and I suspect that we 

this 
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** s ented certain clients, if the facts had been presented that 

the Legislative Committee wanted, perhaps a proper credit 
' bill could have come forth. There are two terms where 
the Legislature has not been able to ascertain the 
facts involving credit, mercantile credit. That is a 
specific example. 

DR. BARD: Mr. Chairman, I just make one com- 
ment. What happened last time and the discussion that 
^ is taking place here again makes me feel that we really 
■^ are as of one. We want this power limited. Everyone 

15 on the Committee felt very strongly in this respect. 

16 We feel that it ought to be germane. We think it ought 
^ to be used only when it is important. Furthermore, we 

want to find some way to protect the power. I don't 



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THE CHAIRMAN: Well, are you suggesting that 




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the Committee consider this Section as referred back to 




3 


it for further wording? 




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DR. BARD: For rewording. We tried very hard 




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to come to grips with how could we give them this power, 




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but limit it so it would be germane, so it would be 




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necessary and at the same time safeguard it. This we 




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are seeking to do. Now, if we reword it, I would be 




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certainly grateful to anyone on the Commission if they 




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could come up with some wording perhaps during the three 




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days we are here . 




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THE CHAIRMAN: Any objection to that procedure? 




13 


JUDGE ADKINS: Does that carry with it a tacit 




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acceptance of the power to compel, the subpoena power? 




15 


In other words, is that question being foreclosed by this 




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reference back; if so, I would like to have a vote on 




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that. 




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THE CHAIRMAN: I don't think it is foreclosed. 




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DR. BARD: No, let me say again, Judge Adkins , 




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a while ago you said you felt that it ought to be there 




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1 This is yet another indication that there is a necessity 

2 for it, but it is one that should be used most carefully. 

3 This is the feeling of our Committee. If the two-thirds 

4 wording would take care of this concern that we have, 

5 certainly our Committee would go along with it. We would 

6 \ant to do anything to safeguard the power. On the other 

7 hand, we do feel there are some occasions, and we also 

8 believe it ought not to be a broad power. Does that answer 

9 your question? 

10 JUDGE ADKINS: Well, I don't want this to 

11 become a personal thing, my own preference would be it 

12 not be included. 

13 THE CHAIRMAN: I would not take it that the 

14 reference back to the Committee would, if the Committee 

15 comes up with a recommendation that there be the subpoena 

16 power subject to some limitation, you would not be pre- 

17 eluded from raising the question that it ought not to have 

18 the power at all. 

19 JUDGE ADKINS: That is all I need. 

20 THE CHAIRMAN: Any further discussion? 

21 MR. CASE: What is the resolution at this point? 
THE CHATKMAN! As to this question dealing wi th . 



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1 the middle part of the Section, it is referred back to 

2 the Committee to consider again and make further report 

3 to the Commission. 

4 MRS. BOTHE: Mr. Chairman, getting back to 

5 this subject, if I may for a moment, could V7e possibly 

6 take the sense of the Commission on the question of 

7 vhether the power should be granted below the level of the 

8 General Assembly or one of its Houses as a whole? 

9 I think the point that Judge Adkins is making, 

10 and I concur with him, is that it should not be granted 

11 to anything less , by grant of anything less than the 

12 entire House with an extraordinary vote, that a Committee 

13 Chairman shouldn't have it. 

14 THE CHAIRMAN: Well, I take it that this is 

15 one of the things the Committee would be considering, 

16 so that if we were going to take the sense of the Commis- 

17 sion on it, I think it ought to be merely in broadest 

18 terms without precluding the possible alternatives that 

19 the Committee might consider. If you want to submit 

20 that -- 

21 MRS. BOTHE: Then I think it might simplify 



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the Committee's task. 

THE CHAIRMAN: Dr. Bard, do you understand 
what is suggested? 

DR. BARD: Yes, I do, very much so. This is 
a very complex question. Let me ask Mrs. Bo the, 
suppose the two Houses were to set up a committee 
embracing both Houses. Would that committee have that 
power , for example? 

MRS. BOTHE: No, unless in a particular in- 
stance they wanted to subpoena a Mister X with particular 
records, and he wouldn't come. They would have to get 
under my proposal a two- thirds vote of that House in 
order to compel Mister X and his records to appear. 

DR. BARD: I tend to agree with you. I don't 
know whether the rest of the Committee do or not. 

MRS. BOTHE: On the revolving credit example, 
if it is a serious enough question as it appears to be, 
that such action could be taken and the Legislature then 
could obtain the information it needs to formulate a 
revolving credit bill. 

THE CHAIRMAN: Mr. Case? 



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1 MR. CASE: Mr. Chairman, I would like to re- 

2 orient my thinking at least on this subject because it 

3 seems to me that it is being approached theoretically 

4 at least from the wrong direction. The power of the 

5 subpoena is, I believe, one of the so-called inherent 

6 powers of sovereignty, and we don't take about the State 

7 Constitution granting that power . Really what we talk 

8 &out is the State Constitution restricting that power, 

9 and by that I mean this: The General Assembly has on 

10 many occasions granted to boards and agencies in the 

11 State the subpoena power. I have personally drawn a 

12 number of statutes which have been passed which say 

13 exactly this, and I have no doubt that if it wanted to do 

14 the General Assembly could pass an act reorganizing it- 

15 self and granting to its committees right today, the 

16 general subpoena power ; so what my friend, Dale Adkins 

17 is so worried about is today completely possible under 

18 the present, under our present situation. 

Therefore, it seems to me that the question 

: is not whether we want to grant the right of subpoena, 
but just how far we want to restrict it, and that it 



■t, 



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seems to me has not been quite met by the debate here 
today. 

THE CHAIRMAN: Mr. Clagett? 

MR. CLAGETT: Mr. Chairman, picking up right 
there, I want to clarify the remarks that I made earlier 
because I thought when I was agreeing with Judge Adkins 
that I was agreeing that the General Assembly should have 
the power to compel the attendance of witnesses and the 
production of records, but I was trying to prevent the 
exercise and use of that power from an abuse. 

I did not mean that it should be unduly re- 
s tricted as it is now, eliminated, and I agree that I 
think we are approaching it from the wrong point of view. 
I am now satisfied in reading the language that the 
Committee has come up with here, that what we are doing 
is really doing the job that the General Assembly will 
have to wrestle with through an appropriate committee which 
can study the background and the deeds and necessities 
and do by law what we are attempting to do, by a search 
for words or phrases, either by restriction or by elimina- 
tion. 



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1 THE CHAIRMAN: Any further comment? Any further 

2 discussion? 
5 MR. SAYRE: On that point, you mean? 

4 THE CHAIRMAN: Yes. Mr. Case, in order to put 

5 the question before the group, would you want to move 

6 that the language, shall have power to compel the attendance 

7 of witnesses and the production of records and papers 

8 either before such House as a whole or before any Com- 

9 mittees thereof, providing that the General Assembly 

10 shall by law protect requested records and papers and the 

11 rights of witnesses, be deleted? I take it that without 

12 such a provision, the Legislature can provide for this. 
15 MR. CASE: That is undoubtedly the case. 

14 THE CHAIRMAN: And if this was deleted, there 

15 would be unlimited power in the Legislature to compel 

16 the production of records. 

17 MR. CASE: I hasten to add I am not for this, 

18 but I want to make abundantly clear what Dale Adkins was 
: saying, his approach to me to be in the inverse order of 
?:( things, what we ought to talk about is restricting the 

power and how far we want to restrict it because it is 



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there now. 

THE CHAIRMAN: It seems to me Mr. Case's 
point is well taken. If the Committee is to have any 
guidance, perhaps we ought to take a few votes on general 
principles as to what, if any, limitations there ought 
to be . 

MRS. BOTHE: Mr. Chairman, I would not accept 
Mr. Case's statem2nt. I am in no position to debate it, 
but I think the Committee should advise the Commission 
as to what the powers of the General Assembly are. 

Now, Article III, Section 24, which is the one 
pertaining to the grand inquest does give the General 
Assembly the power, the House of Delegates the power to 
subpoena, et cetera. Nowhere else in the existing 
Constitution is the power referred to, and I think we 
have all proceeded on the assumption that without a con- 
stitutional grant, there is at least a doubt that a 
committee of the General Assembly could issue a valid sub- 
poena . 

MR. CASE: I can tell you right now that the 
Legislative Council has been doing it for a long time. 



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1 THE CHAIRMAN: Without getting into a debate 

2 of the question, I think the Committee could, if for no 

3 other reason than to document our Report, make a definitive 

4 statement on this point, but we could still take the 

5 sense of the Commission on what, if any, restrictions 

6 there should be on the power. 

7 Now, you want to put up the first restriction 

8 that you suggested a few moments ago? 

9 MRS. BOTHE : That is only by action of a House, 

10 I would say, of the General Assembly acting as a whole 

11 and on a two-thirds vote could the subpoena powers be 

12 acted on. Of course, my motion, perhaps, would be in- 

13 appropriate if we are wrong about the inherent powers of 

14 the Legislature. It might belong in the Declaration of 

15 Rights. 

16 THE CHAIRMAN: I think that we will have to 

17 assume at the moment that either the Legislature has or 
: doesn't have the power, the Co.Ttmittee wants to know whether 

there are some limitations which the Commission wants to 

l put on that power. Now, do you want to propose such a 

21 limitation? 



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MRS. BOTHE: I would propose that a limitation 
be that the power can only be exercised by action of 
either House as a whole on a two-thirds vote. 

JUDGE ADKINS: I will second that. 

THE CHAIRMAN: Are you talking about the 
initial power to compel the attendance? 

MRS. BOTHE: To compel the attendance of wit- 
nesses or subpoena information. 

THE CHAIRMAN: Is there any further discussion 
of that particular question at this time? 

Mrs. Bothe's suggestion is that the power of 
the Legislature or of any committee of the Legislature to 
compel the attendance of any witness or books or papers 
should be limited by the requirement that it be exercised 
only on a two-thirds vote of the appropriate House. 

MR. SAYRE: Of the appropriate House, okay. 

MR. MARTINEAU: Shouldn't we first vote on 
Judge Adkins 1 point? It seems to me we should first 
decide whether we want the Legislature to have the power 

at all. 

THE CHAIRMAN: If we debate procedure, we will 



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1 waste the afternoon. Let's get the sense of the Commis- 

2 sion on various questions. You can put up anything you 

3 want. Any discussion of this particular question? 

4 MR. BOND: I would say I am kind of amazed 

5 because we are trying to build up the State, sustain the 

6 State and yet not willing to give the arm of the Legis- 

is 

7 lature that which the government has. Everything/subject 

8 to abuse as long as there are humans in the world, but 

9 I certainly feel that the Members of the Congress have 

10 this power, and most of them do not abuse it, and I would 

11 hope our elected representatives would go along and 

12 not abuse it either. 

13 THE CHAIRMAN: Dr. Michener? 

14 DR. MICHENER: I wonder if the amendment will 

15 have the aim it is intended to have. As I understand it, 

16 there will be nothing to prevent the Houses from the 

17 start of the session by whatever vote is required to 

18 authorise the Committees to have subpoena power for that 

19 session. They could enumerate all the Committees and make 
: all these particular instances. 

JUDGE ADXINS: Amend your motion. 



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MRS. BOTHE: I amend the motion. The motion 
was one of sense rather than language, but the intention 
was that this apply to each particular instance where 
the power is sought to be exercised. 

THE CHAIRMAN: In other words, the suggestion 
is that each request of the Committee to require attendance 
of a witness or production of a document or a book or 
record require a vote of two-thirds of the appropriate 
House . 

Any further discussion? 

MR. CASE: May I ask a question? Does this 
mean that in general legislation where , for example, 
the State is establishing a board or agency and feels 
necessary to grant that board or agency subpoena powers, 
that that bill implementing this situation would require 
two-thirds vote. 

MRS. BOTHE: I am speaking of procedures in 
the Legislature. 

MR. CASE: So the result of what you are saying 
is that the Legislature has to get two-thirds of its 
Members to vote for it, but it can grant it to any 



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administrative agency by a simple majority. 

MRS. BOTHE: Yes. 

THE CHAIRMAN: Any further discussion? 

Mr. Sykes? 

MR. SYKES: I think Mrs. Bothe's suggestion 
applies the sanctions at the wrong point. If you are 
going to have to go through the machinery of getting 
two-thirds of the House to authorize the issuance of 
a subpoena, you are going to be clogging up the legis- 
lative calendar on matters that may not even be contested, 
and the time for the application of sanctions is when 
a bona fide dispute arises and so challenge is made to 
the appropriateness of the subpoena in the particular 

instance . 

Most of the subpoenas will be honored as a 

are 
matter of course, and all you/ doing is multiplying work, 

and I am against the proposal on that ground although I 

feel there should be safeguards before a subpoena can 

be enforced. 

THE CHAIRMAN: I think Mrs. Bothe would probably 
consent to say her motion would mean that a witness could 



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be compelled against his consent to appear or produce 
a document only by the two-thirds vote. 

MRS. BOTHE: That is right. I wouldn't con- 
template every time a witness is requested, he would have 
to be approved by the two-thirds majority. 

THE CHAIRMAN: Any discussion? 

DR. BARD: We are hopeful Congressman Miller 
will speak on some of the issues that arose in connection 
with the subpoena power and the necessity for it. 

MR. MILLER: I was called away for a short 
time. I don't know where we have gotten. 

THE CHAIRMAN: Let me state very briefly, 
Mr, Miller. The statement has been made in the absence 
of some provision in the Constitution, the Legislature 
as a part of the exercise of the power of sovereignty 
has the power to compel attendance of witnesses and books 
and papers. Not all Members of the Commission are ready 
to accept that at the moment, and the Committee is to 
document it one way or the other. 

What we are doing is taking a series of votes 
to take the sense of the Commission as to whether there 



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should be any limitations on the power to compel atten- 
cance of witnesses or production of papers, and if so, 
what limitations. The present suggestion is that a wit- 
ness can be compelled against his consent to appear 
before the Legislative Committee or the Legislature or to 
produce books or records or a Committee of the Legislature 
or the Legislature only by a two-thirds vote of the 
appropriate House. 

MR. MILLER: That would be without giving the 
Committee, in other words, to get an individual witness, 
a Committee would have to get the vote of the whole House. 

THE CHAIRMAN: If the Committee, if the witness 
objected to appearing in response to the subpoena of the 
Committee, then they would have to get two-thirds vote 
of the House in order to compel his attendance. 

MR. MILLER: Frankly, Mr. Chairman, I think 
that would be tremendously clumsy. I don't see really 
any serious objection to making the legislative body 
when it is acting within its scope of its authority have 
him get a v/itness as easy as a court can get them. The 
witness is still protected by the Constitution, can take 



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why he shouldn't be handled in the ordinary routine of 
business, not make a special resolution for each indivi- 
dual witness . 

THE CHAIRMAN: Any further discussion? 

Mr. Sayre? 

MR.. SAYRE: Mr. Chairman, I would maybe like 
to hear an elaboration as to the rationale here . I can. 
think of one in another State Legislature. Could you 
elaborate on this? 

MRS. BOTHE: I don't feel the Legislatures are 
analogous to courts or to administrative bodies. They 
are not primarily fact finding organizations. They are 
political organizations designed to pass laws, and be- 
cause of that, the abuses potentially inherent in a Legis- 
lature especially one that is not in continuous session 
that holds a short meeting once a year being able to have 
an investigative free for all which has never happened 
in Maryland because regardless of what the actual state- 
ment of affairs may be, the Committees are apparently 
under the impression that they cannot compel the attendance 
of witnesses and have never tried it. This provision, 



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a specific authorization in the Constitution would cer- 
tainly be an invitation for them to do so, and I feel 
that if there is going to be any question of committees 
exercising the authority which they may or may not have, 
but they have exercised in the past, that the Constitu- 
tion ought to put as strong a restriction on them because 
history has demonstrated that the nature of their busi- 
ness is such that the allowance of unlimited power to 
compel books and records and witnesses is bound to lead 
to unconstitutional, by Federal and State standards as 
well, chaos. I don't want to see it happen. 

THE CHAIRMAN: Mr. Case? 

MR. CASE: I don't want to prolong this, but 
if Mrs. Bothe's motion is founded upon the notion that 
the Legislature is a political organization and not a 
fact finding organization, it will fail. If a Legislature 
is a fact finding body to make laws, upon the most dis- 
cerning examination of the fact and it seems to me that 
Legislature should have all the powers it can muster to 
get at the facts and if these do include the subpoena power 
and it seems to me perfectly obvious that the Legislature 



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should be allowed to exercise it. 

THE CHAIRMAN: Mr. Sykes? 

MR. SYKES: I would like to announce that I 
can't vote on this thing one way or the other because 
I haven't sufficient facts. I think this is a matter on 
which an intelligent vote requires the benefit of a 
research memorandum as to the existence of the problem, 
the problem of the abuse of the power, the mechanism 
of other State Constitutions and the like. I am just 
blank on that. 

THE CHAIRMAN: Any further discussion or 
comment? 

DR. BARD: I do want to add one thing. Mr. 
Sykes 1 lack of supportive data is due in part, is that 
this is the first full Commission meeting. We have talked 
this out, perhaps not to the fullness that you desire. 

MR. SYKES: I am merely explaining my ignorance 

THE CHAIRMAN: Any further comment? You ready 
for the question? The question arises on the motion that 
the Section be so drafted as to impose limitation on 
either the granted or inherent pover of the Legislature 



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to require production of witnesses and records by requir- 
ing a two-thirds vote of the appropriate House authorized 
to compel the attendance of a witness against his will 
before the Legislature or any legislative committee or 
the production of books and records. 

You ready for the question? Those in favor, 
please signify by a show of hands. Lost, 6 to 13 . 

Does anybody else desire to submit a motion? 

MR. HOFF: I would like to submit the same 
motion and eliminate the two-thirds and make it a simple 
majority of the Members present. 

THE CHAIRMAN: Can we do that without further 
discussion? 

MR. GENTRY: Call the question. 

THE CHAIRMAN: The same motion except that the 
required action of the legislation be by simple majority 
of the Members present instead of two-thirds, of the 
appropriate House, I take it? 

MR. HOFF: Yes. 

THE CHAIRMAN: Those in favor, signify by a 
show of hands. Contrary. The motion is carried, 13 to 6 



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Nov;, does anybody desire any further limitation 






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to be submitted to the Committee? 






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Mr. Sayre? 






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MR. SAYRE: I am not sure if this is a limita- 






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tion. I am not sure as to the scope of the rules and 






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procedure. We have no limitation here. My first question 






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is to whether -- 






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THE CHAIRMAN: You a re talking about another 






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part of the Section. Let's finish with this particular 






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Section first. 






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Mr. Bond? 






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MR. BOND: I would like to ask, as a point of 






13 


information, is the import of the last vote before any 






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w itness can be subpoenaed, any document be produced, it 






15 


has to be a majority vote of the House concerned, is that 






16 


right? 






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THE CHAIRMAN: If he objects. 






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MR. CASE: The majority of those present. 






19 


MR. BOND: If the Commission will excuse me, my 






20 


only comment is, the last motion, it is impossible to 






21 


carry out, because how in the world will you tell when 








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somebody objects? 

THE CHAIRMAN: He will say so or not show up. 
In order to compel his attendance against his objection, 
you have to have the requisite vote. 

Mr. Case? 

MR. CASE: Does the vote vze have just taken, 
it is alvzays good to know what you have voted on, does 
the vote we have just taken imply that the Constitution 
will be so written to withdraw from the Legislative 
Council the subpoena power that it has? 

JUDGE ADKINS: Certainly should apply to the 
Legislative Council. 

THE CHAIRMAN: I would take it that the 
Legislature or its Committees would include the Legisla- 
tive Council. 

MR. CASE: Then if I may, Mr. Chairman, I move 
that the vote be reconsidered because it seemed to me that 
what Mr. Hoff's motion went to was not that, but merely 
to the Legislature as it sat in Annapolis and was in 
session but to preclude the Legislature from having the 
fact finding powers that the Committees must have during 



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the off season to my mind would be a very serious blow 
to the ability of the General Assembly to find the facts. 
I sincerely believe that if the, as we go forward we 
won't see things that happened like the savings and loan 
scandals a few years ago, go undected by the Legislature, 
and had the Legislature exercised its powers in those 
areas as I think it would today, at that time a lot of 
grief in this State would have been avoided. 

So, if that is what Stan Hoff's motion went 
to, then I sayit is, we are just hamstringing the legis- 
lative fact finding authority, and I think that we should 
reconsider the vote, and I would ask that it be recon- 
sidered and substitute in lieu thereof the idea that 
Mr. Sykes suggested, namely, that this matter be referred 
to the Committee with the idea that appropriate research 
be given to it because actually we are talking about 
a very serious matter; and I don't think we have enough 

facts . 

THE CHAIRMAN: Is there a second? 

MR. CLAGETT: I second that except for the 
latter part of it. 



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MR. BOND: I second the whole motion. 

THE CHAIRMAN: It might be better to separate 
it, Mr. Case. 

MR. CASE: I move that it be reconsidered. 

MR. CLAGETT: I second it. 

THE CHAIRMAN: Any further discussion, only 
on the question of reconsideration. 

MR. HOFF: I think Mr. Case's motion is based 
upon the premise that the Legislative Council now has the 
power of subpoena. I don't think it has. I have 
served on the Legislative Council, and I have never 
heard of a subpoena being issued. 

JUDGE ADKINS: I have never heard of it being 
issued by the Legislature or the Legislative Council. 

THE CHAIRMAN: Mr. Miller? 

MR. MILLER: It seems to me, Mr. Chairman, 
that we can put something about this in the Constitution, 
if we do that, we are going into an awful lot of detail. 
It can be presumed that the legislative body is respon- 
sible and will not delegate authority to committees to 
just make a shotgun approach to any of these things, but 



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1 ought we to have the Legislature limited in the Con- 

2 stitution? Now, we have already said they are only to 

3 be in session at certain times. We have also adopted 

4 the principle, I think, that a committee can work during 

5 the whole year. How could a committee get a witness if 

6 everybody that was, or had to have the Legislature con- 
? vene in order to make them attend against their will? It 

8 just seems to me you are tying the hands of the whole 

9 investigative process. 

1° THE CHAIRMAN: Any further discussion? This 

H is on the motion to reconsider. Readyfor the question? 

12 a vote Aye will reconsider; a vote No will not reconsider 

13 All those in favor of reconsideration, signify by a show 

14 of hands. Contrary. The motion is carried, 13 to 7. 

15 Now, the question arises then on Mr. Hoff's 

16 motion. 

17 MR. HAILE: Are we going to discuss that now? 

18 THE CHAIRMAN: Further discussion. 

19 MR. HAILE: There are two things involved, 

20 one is the issuance of subpoena and the other is the 

2 * punishment of persons who refuse to obey a subpoena and 



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who punishes in this situation, the Legislative Council, 
the Committee, or the Legislature as a whole? 

MR. SYKES: I can answer that. 

THE CHAIRMAN: Mr. Miller? 

MR. MILLER: I would like if permitted to 
amend the, move an amendment to the proposal, and that is 
to just strike all of this Section out of the Constitution, 
We should leave this matter to the Legislature and the 
courts. We are hamstringing people, we are trying to 
keep this as short a document as we can — 

THE CHAIRMAN: Let me interrupt. That sugges- 
tion was made earlier when you were out of the room, 
and nobody wanted to move it at that time. Would you 
accept such an amendment, Mr. Hoff? 

MR. HOFF: No, sir. 

THE CHAIRMAN: Then I would suggest instead 
of making it as a substitute motion, make it as a separate 
motion later if you would , please. Any further discussion? 

MR. BOND: What is the motion before us now? 

THE CHAIRMAN: Motion before you is that in 
order to compel the attendance of a witness against his 



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1 will or production of books and records before the 

2 Legislature or any of the committees of the Legislature 

3 a two-thirds vote of the appropriate House would be re- 

4 quired, I am sorry, a simple majority of those present 

5 of the appropriate House would be required. 

6 MR. HAILE: I may answer my own question, I 

7 think. I think that means in a contempt proceeding a 

8 majority vote of the House is required. I think that 

9 is what we just voted, that is after a witness refuses 

10 to obey a subpoena . 

11 THE CHAIRMAN: We are not trying, Mr. Haile, 

12 to phrase the language, we are simply taking the sense 

13 of the group, and I think Mrs. Bothe's original motion on 

14 which this motion is founded was that if the person were 

15 willing to appear voluntarily or produce the records 

16 voluntarily, it would not be necessary to have the vote « 

17 of the House, but if the person objected to producing 

18 the records or appearing, that it would be necessary. 

19 We are not trying to get the language. 

20 Mr. Case? 

21 MR. CASE: Mr. Chairman, I think that after 



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listening to the debate and having my good friend, 
Stan Hoff, say the Legislative Council doesn't have 
the power, and I am pretty sure I have read in the statutes 
that it does have the power, I think that this discussion 
would be much more meaningful if each of us had an oppo- 
tunity to read and study a research memorandum that the 
Commission's staff would make. I am therefore strongly 
urging that before we try to vote on something that some 
of us at least are confused about, and I will certainly 
say that I am, that we have that opportunity; and there- 
fore I would like to make a motion in substitution 
for the one that is before the Commission, and that is 
that this matter be re-referred to the Committee with 
appropriate instructions that its research staff bring us 
back a meaningful document from which we can base a 
judgment . 

MR. CLAGETT: I would second that. 

THE CHAIRMAN: Mr. Hoff, will you second the 
amendment? 

MR. HOFF: Mo, sir, I will not, but I will 
second if the motion is defeated. 



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THE CHAIRMAN: You want to propose it as a 




2 


substitute, Mr. Case? 




3 


MR. CASE: Yes. 


j 


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THE CHAIRMAN: The question will arise on the 




5 


substitution of Mr. Case's motion. Any discussion? 




6 


You ready for the question? The vote now is simply on 




7 


the question of whether Mr. Case's motion to refer back 




8 


to the Committee should be substituted for Senator Hoff 's 




9 


notion . 




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The question that is now before you is not 


: 


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whether you are for or against Mr. Case's motion, but 




12 


whether you want to substitute his motion for Senator 




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Hoff's motion. 




14 


All those in favor of the motion, the substi- 




15 


tution that is, signify by a show of hands. The motion 




16 


is carried, 16 to 2. 




17 


MR. BOND: I would like to ask to be informed 




18 


as to what is going to happen in other States, in that 




19 


memorandum? 




20 


DR. BURDETTE: I would like to suggest the 




21 


Committee consider the memorandum on how such a matter 






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would be enforced . 

The question in my mind is if a person who 
got over the State line would not be out of the jurisdic- 
tion of the State. I am not sure of this, but I am sure 
he would. I would like to know about that. 

MR. HAILE: Also a question of whether a 
committee of the General Assembly might resort to the 
courts to enforce it. 

THE CHAIRMAN: Any further discussion? You 
ready for the question? 

All those in favor of the motion, signify by 
saying Aye . 

(Chorus of Ayes.) 

THE CHAIRMAN: Contrary, No. 

(There was no response.) 

THE CHAIRMAN: The Ayes have it, and it is so 
ordered . 

Now, Dr. Bard, this leaves us for consideration 
on this Section the question of the two-thirds in the last 



sentence . 



DR. BARD: Yes, sir. 



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1 THE CHAIRMAN: Now, does the Committee still 

2 recommend what is drafted here, that is two-thirds of all 

3 Members, meaning the elected Members? 

4 DR. BARD: We have a feeling that the latter 

5 expulsion is a pretty serious extraordinary event, and 

6 we think the two-thirds would be more in order than 

7 four-fifths. 

8 THE CHAIRMAN: Any comment or questions? Any 
* discussion? 

10 Mr. Sayre? 

H MR. SAYRE: This raises one of my questions as 

** to whether you could be expelled a second time for the 

13 same offense. 

14 DR. BARD: Say that again. 

15 MR # SAYRE: Can you be expelled a second time 

16 for the same offense? 

17 THE CHAIRMAN: What do you mean by the second 
1 Q time? After you have been reelected or something? 

19 MR # SAYRE: It is possible. For instance, 

20 let's take two occasions, one you are expelled for dis- 

21 orderly conduct, you get reelected, and let's say you 



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have the same disorderly conduct. Now, two, you are 

2 

dected, but you are underage. The people put you back 

* in. Well, I guess that is a constitutional question. 

THE CHAIRMAN: I take it from the way the 
language is drafted, the Committee intends to confer on 
the Legislature the power to expel a Member at any time 
for any reason by two-thirds vote. 

8 MR. SAYRE: What about double jeopardy? 

9 THE CHAIRMAN: At any time for any reason. 
1 MR. SAYRE: The position of double jeopardy 

is waived in here. 

12 MR. GENTRY: That is criminal. 

13 THE CHAIRMAN: That is not applicable here. 

14 MR. SAYRE: If that is clear. 

15 THE CHAIRMAN: I would think so. It seems to 

16 me it is clear when it says that two-thirds of all the 
1^ Members may expel another Member without limitation 

It is not a punishment. It is simply an expulsion. 



11 



18 



19 JUDGE ADKINS : May I ask what the word, punish' 



20 



ment, means in this context? 



21 THE CHAIRMAN: Dr. Bard? 



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1 JUDGE ADKINS: Can they imprison? 

2 DR. BARD: This is language that has been used 

3 for some time, and I assume it means a little more than 

4 expulsion, doesn't it? Ask him to leave. 

5 JUDGE ADKINS: May punish and expel. 

6 THE CHAIRMAN: Has it been suggested that a 

7 Legislature can imprison? 

8 DR. MICHENER: We have in the past. If you 

9 don't mind my saying something, on this double jeopardy, 

10 because it actually ha.ppened in the New York State Legis- 

11 lature where they expel Members for being members of the 

12 Socialist party, the Norman Thomas party, and were re- 

13 elected by the constituents again and were expelled a 

14 second time for the same membership. 

15 THE CHAIRMAN: Any further comment or question, 

16 discussion? 

^7 Mr. Sayre , you had a question with respect to 

18 rules of procedure in the first two lines at the tope of 

19 Page 7. 

20 MR. SAYRE: Well, this is one of them. Another 

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tion, I guess, would come under Section 15. All right, 




2 


how about people who attend a session of the Legislature? 




3 


Under what? 




4 


THE CHAIRMAN: I am sorry I can't hear you. 




5 


MR. SAYRE: Under what conditions can the body 




6 


exclude public attendance? 




7 


THE CHAIRMAN: I am not sure I understand your 




8 


cpestion. 


} 


9 


DR. BARD: Under what conditions might they 




10 


have so-called executive sessions, I am assuming. 




11 


Wouldn't that be under their rules? 




12 


DR. WINSLOW: Yes. 




13 


MR. DELLA: Yes. 




14 


DR. BARD: We feel that ought not to be in 




15 


the Constitution, 




16 


MR. SAYRE: In other words, they could change 




17 


their rules in a certain period of time to exclude public 




18 


attendance . 




19 


THE CHAIRMAN: Apparently so. 




20 


DR. BARD: They could, but we would have faith 




21 


in them that they wouldn't, and this goes back to the 






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1 broad concept that we have set forth, Mr. Sayre, through- 

2 out, namely, that certainly we have to have faith in this 

3 body that they are giving more and more power to. 
Dr. Win slow has a point. 

5 THE CHAIRMAN: Dr. Wins low? 

6 DR. WINSLOW: In reference to Judge Adkins * 
• question about punishment, would you be better satisfied 

8 if the word were, disciplined? I would. 

9 JUDGE ADKINS: I think this is a fairly broad 
power to say, may punish a Member without any limitation. 

11 THE CHAIRMAN: Let me call your attention — 

Mr. Brooks has just handed me, called my attention to 
13 Section 23 of Article III of the present Constitution 
" which says, Each House may punish by imprisonment during 

15 the session of the General Assembly any person not a 

16 Member for disrespect or disorderly behavior in its 
presence or for obstructing any of its proceedings or any 

1® of its officers in the execution of their duties, provided 
19 such imprisonment shall not at any one time exceed ten 
days . 

DR. BARD: It is Section 19, Mr. Chairman. 



17 



20 
21 



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* You will note that the present Constitution uses the 

* word , punish . 

3 THE CHAIRMAN: Well, Section 19 uses the words 

* you have here. 

DR. BARD: Pretty much. 

6 THE CHAIRMAN: But does not spell it out. 

7 Now, Judge Adkins, you were making a comment in reply to 
® Dr. Wins low's statement. 

9 JUDGE ADKINS: Dr. Wins low suggested that the 

word, punish, be changed to discipline. I think that is 

1 a milder word. 

12 DR. WINSLOW: And would be used more. 

13 JUDGE ADKINS: Would be more appropriate. 

14 THE CHAIRMAN: Dr. Bard? 

15 DR # BARD: My own feeling is that discipline 

16 may not be strong enough in some situations. I don't have 

17 any strong feelings about it. It is a matter of semantics 

18 at this time. The present Constitution uses the word, 

19 punish. 

20 THE CHAIRMAN: Want to make a motion on it? 

21 JUDGE ADKINS: I don't feel strong enough to 



10 



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1 make a motion. I will accept the Committee's thinking. 

2 THE CHAIRMAN: Any further discussion of this 

3 Section? 

4 MR. SYKES: I see in Section 19 of Article III 

5 the language. 

6 THE CHAIRMAN: The present Constitution. 

7 MR. SYKES: Yes, of the present Constitution, the 

8 language apparently gave Mr. Sayre the trouble he had. 

9 There is a provision that no member shall be expelled a 
10 second time for the same offense. Now, that provision 
** has been left out of the redraft. That provision also 

12 indicates that expulsion doesn't mean complete disquali- 

13 fication as a legislator, creating a vacancy, but means 

14 simply banish. From the right to take the floor or to 

15 be on the floor for a particular period. I would like 

16 to ask the Committee whether it meant any change in sub- 
IV stance, or whether it so interpreted the word, expel, 

18 whether it means to broaden the power to expel and the 

19 effect of the power and why it was that the so-called 

20 double jeopardy provision was not included in the redraft. 

21 THE CHAIRMAN: Dr. Michener? 



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1 




1 




DR. BARD: In the last Report, Fifth Report, 


1 




2 


commentary 


in the Fifth Report, Page 14, the following 






3 


sentence , 


similar language, except that it eliminates the 






4 


provision 


that no member shall be expelled the second time 






5 


for the same offense. If there is any restriction on the 






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House, it 


should be left to the House in question when 






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acting on 


the expulsion of the member. It would be in the 






8 


rules of the House itself. 






9 




We were trying to shorten this, and we felt 


1 




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that there 


was no need for setting this forth other than 






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in the rul 


es itself. 


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MR. SYKES: What did you mean by the term, expel 






13 


a member? 


Did you mean to disbar him from the club corn- 






14 


pletely or 


simply chase him off the floor for a while? 






15 




DR. BARD: It could be either. 






16 




MR. SYKES: I don't think the present Constitu- 






17 


tion means 


either. I think it necessarily means just 






18 


to deprive 


him of the privilege of the floor. 






19 




THE CHAIRMAN: Why do you say that? 






20 




MR. SYKES: Because you couldn't very well 






21 


expel a Member, that is disqualify him or disbar him as 








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a legislator twice. You could only do it once. 

THE CHAIRMAN: You could in the example 
Dr. Michener gave you, where the person was expelled for 
being a Socialist, was reelected as a Socialist, and 
expelled a second time. 

DR. JENKINS: They have exactly the case in 
the Georgia Legislature now, in the Bond case which is 
being considered by the Supreme Court as a Federal right. 

MR. SYKES: That would raise all kinds of 
questions as to whether the legislature is a continuing 
body, and as the Legislature meets only for a particular 
time only for the term for which it is elected, as I think 
there is probably good cause to argue, then expel, as it 
is used in the Constitution, with the double jeopardy 
provision would probably have to mean simply deny the 
right to take part on the floor. 

I think that the present Constitution has some 
sense to its provision because it is a kind of safeguard 
against the political motivation to try to change political 
alignments or to take political revenge against somebody. 

If he is punished, he should take his punishment 



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1 and that should be it. 

2 THE CHAIRMAN: You want to submit a motion? 

3 As I understand the Committee, they deliberately left 
* out the qualifying language. 

5 MR. SYKES: I would submit the motion that at 

6 the very least, the term, expel, be changed to make clear 

7 whether it means disqualified for the rest of the session 

8 or forever or simply denied the right to take part on 

9 the floor for a stated time. I think it should not be the 
way it is . I am not sure which is best. 

H THE CHAIRMAN: Your motion at the moment is that 

12 the Committee consider, consider clarifying the word 

13 to indicate whether they mean expulsion would mean such 

14 as to create a vacancy or something else? 

15 MR. SAYRE: Mr. Chairman — 

16 THE CHAIRMAN: Wait just a second. Is there 

17 a second to the motion? The motion fails for lack of a 

18 second. 

19 MR. SAYRE: What was the motion? 

20 THE CHAIRMAN: Nothing to discuss. 

21 MR. SAYRE: Well, we are still discussing the 



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1 point, I guess. 

2 THE CHAIRMAN: Which point? 

3 MR. SAYRE: The meaning of expel. 

4 THE CHAIRMAN: Right, go ahead. 

5 MR. SAYRE: Was the motion to have clarifica- 

6 tion? Was that the motion? 

7 THE CHAIRMAN: Yes. 

8 MR. SAYRE: I will second that. 

9 THE CHAIRMAN: Discussion? 

10 MR. SAYRE: In Section 16 where' we talk about 

11 impeachment, it seems to me that we don't have a much 

12 more restricted meaning for the word, expel; we are actually 

13 giving impeachment powers under the word, expel, and I 

14 think that we must define the word, expel, and I am certain - 

15 ly for the provision of not being punished a second time for 

16 the same offense. 

17 DR. MICHENER: It has the term, punish. For 

18 lesser things, by suspending them from the floor or 

19 revoking his right to sit in the Legislature as a whole. 

20 I think it is quite clear what the Committee meant, and I 

21 thought it was clear here. 



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1 THE CHAIRMAN: Any further discussion? Ready 

2 for the question? 

3 The question arises on the motion that the 

* Committee consider clarifying the use of the word, expel, 

5 so as to indicate whether it means expulsion in the 

" sense of creating a vacancy or something less. 
^ All those in favor, signify by a show of hands. 

8 Contrary? 

' The motion is lost, 6 to 12. Any further dis- 

cussion of this Section? 

11 DR. BARD: Two-thirds okay? 

12 THE CHAIRMAN: I didn't understand there was 

13 any objection to the two-thirds in this particular situa- 
1^ tion. Does anybody desire to submit a different pro- 

15 portion? This is two-thirds of the whole membership, the 

16 Members elected. We move on to Section 15 on Page 8. 

17 DR. BARD: Each House shall keep a journal of 
- L its proceedings and cause the same to be published. No 
19 bill shall become a law unless it be passed in each House 



10 



20 



by a majority of the Members of that House. 



21 We change that at the recommendation of the 



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Commission. It was our desire that it be a majority of 




2 


the Members present, but we revised it at your recom- 




3 


mendation at the last Commission session, and on its 




4 


passage, the Yes and No votes be recorded in the journal 




5 


of each House, nor shall any resolution requiring the 




6 


action of both Houses be passed except in the same manner. 




7 


THE CHAIRMAN: Any question? Any comment? 




8 


Mr. Sayre? 




9 


MR. SAYRE: I know this might be slightly re- 




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dundant, but I would like to have the word, public, 




11 


inserted in there. 




12 


THE CHAIRMAN: The word what? 




13 

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MR. SAYRE: The word , public. Each House 




14 


shall keep a public journal or in some way in which it 




15 


is known, this journal is available to the public. 




16 


THE CHAIRMAN: Isn't the requirement that it 




17 


be published sufficient? 




18 


MR. SAYRE: I am not sure. We do have the 




19 


word in the past, having it a matter of public record, 




20 


and I am just not clear as to whether public makes it a 




21 


matter of public record. That is my whole question. 

_,_ 




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THE CHAIRMAN: Any comment? 






2 


DR. BARD: I wouldn't object. I think it is 






3 


certainly implied, and we hope understood here. I see no 






4 


objection. 






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THE CHAIRMAN: I would think it would be. 






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MR. HOFF: Actually, it is published many 






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months after the session, and if you wait for publication, 






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you may have to wait until the session is over. 






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MR. BROOKS: Since the sessions are public, I 






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think that would take care of it. 






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DR. BURDETTE: Yes, but some sessions are not 






12 


public . 




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DR. BARD: I don't think we ought to belabor 






14 


the point. I think adding the word , public, would do 






15 


no harm, and might do some good. 






16 


THE CHAIRMAN: Any objection to that? If not, 






17 


it is so ordered. We move on to Section 16. 






18 


MR. DELLA: One question, Mr. Chairman, on 






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Section 15. I gather the feeling is that the legislation 






20 


is to be passed by the majority of the Members present 






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and not a constitutional majority as such? 








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THE CHAIRMAN: This is a majority of the 
Members of the House which means elected. Section 16, 
on Page 9 . 

DR. BARD: The House of Delegates shall have 
the sole power of impeachment in all cases provided by 
law but a majority of all the Members must concur in the 
impeachment. All impeachments shall be tried by the 
Senate, but no person shall be convicted without the 
concurrence of two-thirds of all the senators. 

MRS. BOTHE: Can we have an explanation? 

THE CHAIRMAN: Dr. Bard? 

DR. BARD: Dr. Michener? 

DR. MICHENER: Explanation of what? 

MRS. BOTHE: It doesn't make sense to me. It 
reads as though there are two contradictory powers granted, 
one to the Senate and one to the House. 

THE CHAIRMAN: No, the impeachment is by the 
House. That is the indictment, so to speak, and the trial 
is by the Senate. That is the conviction if there is a 



conviction. 



DR. BARD: Looks pretty much like presidential 



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1 impeachment, Mrs. Bothe. 

2 MR. CASE: May I throw a curve? 

3 THE CHAIRMAN: Mr. Case? 

4 DR. BARD: We accepted this last time, but it 

5 is all right to reopen it. 

6 MR. CASE: If we vote for this, are we by 
V inference voting for bicameral legislation? 

8 DR. BARD: No, because our body has set this 

9 up so the adjustment can be made, and when we run into 

10 something like this — 

11 MR. CASE: What would be the adjustment? 

12 THE CHAIRMAN: Let me cut across. The 

13 directive of the Commission was that alternate provisions 

14 be prepared for both so they obviously would have to 

15 draft an alternate for this providing for unicameral. 

16 DR. BARD: We just have the same House?. 

17 MR. CLAGETT: I have one question here -- the 

18 difference between impeachment and expulsion if you get 

19 expelled permanently? 

20 THE CHAIRMAN: Well, I would take it that the 

21 impeachment referred to here is impeachment in cases pro- 



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vided by law which would be other than Members of the 
Senate and House, and expulsion from the Legislature would 
be under the previous Section and would not be by process 
of impeachment. 

MR. CLAGETT : Assuming you are impeached, 
then what happens? 

THE CHAIRMAN: Who is impeached? 

MR. CLAGETT: The man who is being impeached 
by the House, tried by the Senate, and by a two-thirds 
concurrence has been convicted. What happens to him? 

THE CHAIRMAN: He vacates office. 

MR. CLAGETT: It doesn't say so. 

DR. BURDETTE: It needs to say, shall be con- 
victed, but no person shall be convicted -- that is con- 
victed and removed from office without the concurrence. 

THE CHAIRMAN: Isn't that implicit in the 
word, impeachment? 

DR. BURDETTE: No. 

MRS. BOTHE: Does it necessarily carry with it 
the loss of office? 

MR. CASE: No. One president of the United 



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States was impeached. 

THE CHAIRMAN: Mr* Clagett has the floor. 

MR. CLAGETT: I agree with Dr. Burdette that 
unless there is some further definition or provision, 
what happens after impeachment? We are left without 
knowledge of what happens from there and conviction with- 
out any further punishment. I would move that the Committee 
consider the providing of what shall be the effect of 
impeachment . 

THE CHAIRMAN: I might add to that, Governor 
Lane has just called my attention to Section 3 of Article I 
of the United States Constitution which contains detailed 
provisions as to what follows from a judgment of impeach- 
ment. It is on Page 114 of the red book. 

MR. BROOKS: Section 26 of Article III, the 
State Constitution. 

THE CHAIRMAN: Dr. Bard, what is your comment 
as to the suggestion made by Mr. Clagett? 

DR. BARD: It would do no harm to insert it, 
that no person shall be convicted or removed from office 
without the concurrence. This may be in the sense giving 



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the definition of the significance of conviction. Is 




2 


Dr. Wins low shaking his head on that? 




3 


MR. CLAGETT: That wouldn't work. Because 




4 


then you have it tied in with expulsion. 




5 


DR. WINSLOW: Members of the Legislature are 




6 


not impeached. 




7 


THE CHAIRMAN: The process of removal in the 




8 


Legislature is under the other Sections, it is expulsion. 




9 


You are talking about impeachment of officers other than 




10 


senators or delegates. Dr. Bard, would it not be worth- 




11 


while for the Committee to consider the substance of 




12 


something like is in the United States Constitution? 




13 


DR. MICHENER: Could I point out that the 




14 


Federal Constitution puts a limitation on the power of 




15 


impeachment? 




16 


THE CHAIRMAN: I understand that. 




17 


MR. BROOKS: But the word , impeachment, implies 




18 


what the charge is without saying it. If you are con- 




19 


victed of that charge which is removal of office, then that 




20 


would follow. 




21 


DR. BURDETTE: There is no penalty, only a 






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159 



moral reprimand. 

2 On Page 22, Section 26, Article III, would 

3 mean that no Governor of Maryland could be removed from 
office by impeachment. 

5 THE CHAIRMAN: I wouldn't agree with that con- 

" elusion. 

7 DR. BURDETTE: He could be impeached, convicted, 

" but that is only a moral reprimand. 

• THE CHAIRMAN: It seems to me the discussion 

points up there is a diversion of views as to the word, 
impeachment. Can the Committee clarify it? 

MR. SAYRE : I am thinking of some language 
13 that could be tacked on here for the penalty to be pro- 
•*■* vided by law. 

15 DR. BURDETTE: He could be removed from office. 

16 MR. SAYRE: Yes. I like this language this 
is closer to the existing Constitution, and if it is 

1® appropriate, I would move to substitute the Section that 
19 reads, the Governor, the heads of the principal depart- 
ments, the judicial officers and such other officers of 



10 
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21 the State as may be designated by law are subject to im- 



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r peachment. Impeachment must originate in the House of 

* Delegates and must be approved by a two-thirds vote of 

3 all the delegates. The Senate shall by law provide pro- 

* cedures for trial of impeachment and for removal from 
5 office of officers convicted. The Senate shall try 

* all impeachment, and no person shall be convicted without 
1 the concurrence of two-thirds of all the senators. 

° To me that is clearer than what we have in 

9 Section 16. 
10 THE CHAIRMAN: But it also embodies a number 

1 of different ideas. 

12 DR. BURDETTE: I wonder if Mr. Sayre would 

13 p U t into his motion the thought that senators shall be 

14 removed. That is in the present Constitution, and it 

15 has been very meaningful as in the case of Andrew Johnson, 

16 a great many people wouldn't vote for the conviction on 
1? political grounds because they were under oath, and it 

18 becomes a matter of religion. 

19 THE CHAIRMAN: Mr. Sayre, I think it would be 
1 inappropriate for us to try to pass on that language that 
21 you have read. Would you rephrase your motion that it be 



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recommitted to the Committee to consider that as well as 
the other suggestions that have been made? 

MR. SAYRE : I would so move . 

THE CHAIRMAN: Is that your motion? 

MR. SAYRE: Yes. 

THE CHAIRMAN: Is there a second to the motion? 

MR. DELLA: Second. 

THE CHAIRMAN: Dr. Bard, you have any comment? 

MR. BROOKS: The Committee did consider that 
very language before and had reason for rejecting it. 
Rather than take it back to the Committee and go over 
the same thing again -- 

DR. BARD: What is a principal officer? We went 
over that again and again. 

MR. BROOKS: It is also pointed out that the 
Judicial Article carry its own provision for removal; 
otherwise they are provided for in the language just 
recommended, and the officers provided for in the Consti- 
tution at the moment would not be in the Article. This 
leaves the Governor. 

THE CHAIRMAN: Mr. Miller? 



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MR. MILLER: It also occurs to me that it is 




2 


belaboring the Constitution to provide for special oath 




3 


or a special affirmation whenever a member of the legis- 




4 


lative body takes an oath of office. You don't have a 




5 


judge every time you make an affidavit or take an oath. 




6 


I think we are getting down into too many details. A 




7 


senator is not going to vote one way under oath and 




8 


another way because he didn't put his hand on the Bible, 




9 


and we are getting this down to the point where it is 




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ridiculous. 




11 


MR. CLAGETT: Mr. Chairman, would it be 




12 


ridiculous, though, to add after the last word, senators, 




13 


on oath or affirmation, and then the further phrase, 




14 


appropriate word shall not extend further than removal 




15 


from office? 




16 


THE CHAIRMAN: That you might make as a separate 




17 


motion that would be embodied in this if this passes. 




18 


At the moment, the motion before you is Mr. Sayre's 




19 


motion to recommit to consider the language he has read, 




20 


and Dr. Bard says the Committee has already considered 




21 


that. 






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9 

THE CHAIRMAN: And adopted this language in 
preference to it. Now, is there any further discussion? 
You ready for the question? All those in favor of the 
5 motion to recommit the Section to the Committee, signify 
by a show of hands. Contrary. The motion is lost, 
2 to 16. 

Mr. Sykes? 

MR. SYKES: Mr. Chairman, I tried my hand at 
drafting. I would like to make this motion. All impeach- 
ments shall be tried by the Senate and any person impeached 
shall be convicted upon concurrence of two-thirds of all 
^■ 3 the senators and shall thereupon forfeit his office. 

14 MRS. BOTHE: Second. 

15 MR. CASE: That means, if I understand it, an 
optimum case. Is it not true in some cases impeachment 

* implies less than the optimum sentence such as a suspen- 
sion or something of that nature? I am not sure that 
19 



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is the case. 

MR. SYKES: Why go through all this? 



21 THE CHAIRMAN: Dr. Wins low? 



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DR. WINS LOW: I believe in the United States 




2 


Constitution it says that punishment shall not go farther 




3 


than removal from office and disqualification to hold offic 


s 


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again, which implies there might be a lesser sentence 




5 


than removal. 




6 


MR. CASE: I would like to move -- 




7 


THE CHAIRMAN: Wait just a second. We have a 




8 


motion before us. 




9 


MR. CASE: I would like to amend it. 




10 


THE CHAIRMAN: Go ahead. 


• 

• 


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MR. CASE: May I go ahead? 




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THE CHAIRMAN: Yes. 




13 


MR. CASE: I would like to amend Mr. Sykes ' 




14 


motion and by appropriate language to suggest the same 




15 


thought that is in the Federal Constitution, namely, 




16 


that judgment in cases of impeachment shall not extend 




17 


further than removal from office. 




18 


THE CHAIRMAN: You accept the amendment, 






Mr. Sykes? 




20 


MR. SYKES: That is acceptable to me. 




21 


MR. CLAGETT: I x*>uld like to further amend it 






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to put them under oath or affirmation. 

THE CHAIRMAN: Do you accept the amendment, 
Mr. Sykes? 

MR. SYKES: I do not accept it. 

THE CHAIRMAN: You want to move to amend the 
motion? 

MR. CLAGETT: I so move. 

THE CHAIRMAN: Is there a second to Mr. Clag- 
ett's motion to amend Mr. Sykes 1 motion? It fails for 
lack of second. 

DR. BURDETTE: I will second it so I may get 
the floor. 

THE CHAIRMAN: Now you have the floor on the 
question of the amendment. 

DR. BURDETTE: I have no desire to bring up 
the word, oath. I am not trying to get into this matter. 
What I am trying to do, and I am wondering if Mr, Clagett 
would accept this view, and Mr. Sykes in some fashion to 
make this a judicial proceeding in the minds of the 
senators instead of a political proceeding. However that 
can be worded, I would like to get it down. I think that 



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is the old fashioned meaning in the Federal Constitution. 

MR. SYKES: The reason I didn't accept the 
amendment is to say that the Senate shall do something on 
oath doesn't say very much unless you specify the oath, 
and if you say in the Constitution that the oath must be 
an oath to well and truly try the issue on the impeachment 
and judicial manner and not be swayed by politics and 
all that kind of stuff, then you are getting very un- 
wieldy for constitutional rights. 

So I agree with Congressman filler that this 
doesn't belong. 

THE CHAIRMAN: The present language, I think, 
as you pointed out, is that the senators shall be on 
oath or affirmation to do justice according to the law and 
evidence . 

Any further discussion of Mr. Clagett's motion 
to amend Mr. Sykes ' motion? 

MR. CLAGETT: May I say one further thing? I 
think it provides that the proceeding shall be on oath 
and affirmation i that it will then require the forming of 
such an oath and that would well include the factors we 



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are trying to take care of here. So I am really trying 
to avoid unnecessary language because I would feel that 
the definition of the oath would be one which would put 
them to a test outside of the actual political forum 
and into the judicial deliberations. 

THE CHAIRMAN: Any further discussion? 

Dr. Michener? 

DR. MICHENER: I would like to make a comment. 
The Federal restriction, as I understand it, as implicit 
in this motion restricts the punishment for impeachment 
to removal from office and no other things, and if you 
make it less, unless you restrict salaries or something 
of that sort and the minute you do that, you get into the 
bill of attainder which is forbidden under the Constitu- 
tion . 

MR. SYKES: The reason it didn't make any 
difference to me is that the Federal language has 
authoritative construction, and we would, in effect, be 
borrowing what they have done. I don't see how you can 
get into too much trouble. 

DR. MICHENER: It goes beyond. You can't execut 



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the man for it. You can only remove the man from office 




2 


and nothing more. 




3 


THE CHAIRMAN: No, you can do more because 




4 


under the Federal Constitution, you can disjoin him from 




5 


holding any office for profit, trust or honor in the 




6 


United States. 




7 


DR. MCHENER: You can't execute the man. You 




8 


have to have a separate trial for that. 




9 


MR. CASE: If you execute him, you don't need 




10 


to do anything about it. 




11 


THE CHAIRMAN: Are you ready for the question? 




12 


JUDGE ADKINS: What is the question? 




13 


THE CHAIRMAN: The question arises on Mr. Clag- 




14 


ett's motion to amend Mr. Sykes ' motion to put in the last 




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sentence the requirement that the Senate in trying an 




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impeachment shall act under oath. 




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DR. BARD: Was there a second? 




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THE CHAIRMAN: Yes, Dr. Burdette. 




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DR. BURDETTE: Why not use the language in 




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the Constitution now? The present Constitution says, 




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shall be on oath or affirmation to do justice according 






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to the law and evidence. 

THE CHAIRMAN: You accept that, Mr. Clagett? 

MR. CLAGETT: Yes. 

THE CHAIRMAN: The question now is on the 
motion of Mr. Clagett to amend Mr. Sykes ' motion. All 
those in favor of the amendment, signify by a show of 
hands. Contrary. The motion is lost, 4 to 16. The 
question now arises on Mr . Sykes' motion with the amendment 
which he accepted . 

Any further discussion? Dr. Bard? 

DR. BARD: I like Mr. Sykes' motion because I 

is 
think it puts the wording that we now have, it/sort of 

negative form, places it in an affirmative form. I 

think it strengthens it and really keeps us from the 

requirement for adding the sort of thing that Mr. Bur- 

dette and some others suggested. I wish you would read 

it again. 

THE CHAIRMAN: Can you give your addition, 
Mr. Sykes? 

MR. SYKES: All impeachments shall be tried 
by the Senate and any person impeached shall be convicted 



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1 upon concurrence of two-thirds of all the senators, and 

2 then there would follow the language. 

3 MR. CASE: Judgments in impeachment shall not 
* extend further than removal from office, as in the Federal 

5 Constitution. 

6 THE CHAIRMAN: I would like to comment that 

7 I am very much puzzled by that addition, because I had 

8 J thought and I may be wrong about it, that impeachment 

9 meant only one thing, removal from office. 

10 DR. WINSLOW: No, no. 

11 THE CHAIRMAN: If you have this, what power is 

12 there of the Senate to punish? What sort of punishment 

13 J could it mete out? 

14 DR. BURDETTE : Resolution of censure. 

15 THE CHAIRMAN: Imprisonment? 

16 DR. BURDETTE: No resolution of censure. 

17 THE CHAIRMAN: I say could it be imprisonment? 

18 MR. CASE: That would extend further'than to 

19 the removal of office. I think it has to be something 

20 related to his office. He might be suspended, he might 

21 be, as Dr. Burdette said, censured, but it would all have 
to affect in th e ultire ^fe o. the removal of office, eny Sk-iag- 

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1 other than that would be not allowed. 

2 THE CHAIRMAN: Reduce his salary? 

3 MR. BROOKS: Can't do that under other pro- 
* visions of the Constitution. 

5 MR. CASE: That is on Page 114 of your red 

book. 

7 MR. SAYRE : I don't see any reason to have 

° anything other than removal of office. 

9 THE CHAIRMAN: Any further discussion on 

1^ Mr. Sykes ' amendment? 
11 Dr. Jenkins? 

DR. JENKINS: This uses the term, tried. Does 

13 this make it crystal clear that the defendant would have 

1.4 the right to appear in his defense with counsel? 

15 THE CHAIRMAN: I would think so, Dr. Jenkins. 

16 I think a trial would carry with it the implications of 
1^ due process . 

18 DR. JENKINS: All that, including the oath? 

19 THE CHAIRMAN: Dr. Burdette? 

20 DR. BURDETTE: This query of Mr. Jenkins' leads 

2 1 me to ask another question, and I do so in order to make 
it in the -re^or^ I of^ou^ S&qs& ^ h ^zKicJ- s h ould l i 1 ^ to 

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1 ask, Mr. Chairman, if it is the general intent of this 

2 motion of w r. Sykes that this be on the law and evidence 

3 or that it be simply on the basis that we would rather 

4 have another governor, another officer in his place? What 

5 is the intent of the motion? 

6 MR. SYKES: The language of the Section uses 

7 the word, try, and the word, convey, and it seems to me 

8 that that plus the history of the term, impeachment, 

9 plus the Federal analogy, would indicate that it would 

10 have to be a trial type hearing with the usual safeguards 

H connected with it, and that it is a semi-judicial func- 

12 tion. 

13 THE CHAIRMAN: Any further discussion? Reedy 

14 for the question? 

15 MRS. FREEDLANDER: I call the question. 

16 THE CHAIRMAN: The question arises on Mr. Sykes 1 

17 motion. Would you read the language again, Mr. Sykes? 

18 I don't have it. 

19 MR. SYKES : All impeachments shall be tried 

20 by the Senate and any person impeached shall be convicted 

21 upon the concurrence of two-thirds of all the senators. 



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MR. CASE: Only upon? 

MR. SYKES: Begging your pardon, only upon a 
concurrence of two-thirds of all the senators. 

THE CHAIRMAN: And add your sentence. 

MR. CASE: Judgments in cases of impeachment 
shall not extend further than to removal from office. 

THE CHAIRMAN: All right. You ready for the 
question? Those in favor of the motion, signify by a 
show of hands. Contrary, a show of hands. The motion 
is carried, 19 to 1. Any further comment as to this 
Section. 

DR. BARD: Section 17 on Page 10. Any bill 
may originate in either House of the General Assembly 
and be altered, amended, passed, or rejected by the other. 
Except during the first two days of a special session, 
no final vote for passage of a bill shall be taken until 
a bill shall have been printed and until the third calen- 
dar day after introduction. This, we felt would take 
care of the question that faced us last time, namely, if 
there were a special session, that might last one day as 
we have had from time to time, it would not be necessary 



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to let three calendar days elapse between the time of 






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introduction and passage, but on any other occasion, if 






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it were a two-day one, it could happen in two days, but 






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on any other occasion, we felt the matter of three calen- 






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dar days is sufficient. 






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THE CHAIRMAN: Any questions or comment? 






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Mr. Hoff? 






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MR. HOFF: How do you know how long a special 






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session is going to last? 






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DR. BARD: That is why we said no final bill 






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for passage of a bill shall be taken until a bill shall 






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have been printed and until the third calendar day. 






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MR. HOFF: Then any bill introduced on the 






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third day of a special session v;ould by necessity prolong 






15 


the session until that bill could be passed? 






16 


DR. BARD: Yes. We felt that if, if it were 






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a special session that where actually cognizant of the 






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reason for the special session, you would have no reason 






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for not knowing. After all, you called the special session 


> 




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when the Governor calls a speci.nl session, he calls it for 






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a particular purpose. If someone else wants to introduce 








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some other matter this, in a sense, would keep them from 
doing it. This would be true, wouldn't it, Governor Lane, 
if you call a special session for one day, it is usually 
for a particular purpose in mind? 

GOVERNOR LANE: That is generally true, yes. 
But it has virtue, because usually they know what they 
are going to do. It is decided before they meet, and in ad 
dition to that, it can all be printed and can be informed. 
I question the idea of prolonging it. 

DR. BARD: This is why we felt for a special 
session you need not be restricted on that matter of 
three clanedar days. We are with you on that. 

THE CHAIRMAN: Mr. Case? 

MR. CASE: Mr. Chairman, I suggest that this 
Section 17 should be a mended. In the third line from 
the bottom after the word, printed, there should appear 
for final reading. This is the law today, and it is a 
safeguard, of course, bell ringers and amendments run 
through the Legislature in all sorts of fashion. If the 
bill is merely printed once, then you can amend it by 
striking out everything after the word, a bill, and insert- 



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1 ing something entirely different in handwritten or hiero- 

2 glyphics or any way to pass it through, and it would 

3 become law. So, I think it should very frankly say, it 

» should become law until it is printed and for final read- 

5 ing. 

6 THE CHAIRMAN: You accept the change? 

7 DR. BARD: We accept it. 

8 THE CHAIRMAN: Any objection to the change? 

9 After the word, printed, in the third from the last line, 

10 insert the words, for final reading. 

11 Any further question on this Section? 

12 DR. MICHENER: Yes, didn't we strike the three 

13 readings? 

was 

14 THE CHAIRMAN: i/just about to ask. 

15 DR. MICHENER: So it would have to be printed 

16 before the final vote. 

17 MR. CASE: The thought is the same. 

18 THE CHAIRMAN: Well, why? If it is final 

19 reading, it wouldn't make any difference, would it? You 

20 are not saying the third reading. 

21 MR. CASS: What you are saying is it ought to 



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1 printed and contain all the amendments and however you 

2 want to phrase it, I don't know. 

3 JUDGE ADKT.NS: In final form, would be better. 

4 MR. CASE: Final form, good. 

5 MR. SAYRE: A question. 

6 j THE CHAIRMAN: Mr. Sayre? 

V MR. SAYRE: I assume again that it would be 

8 not necessary to say, and lying on the desk of the Members 

9 DR. BARD: No. 

10 THE CHAIRMAN: Any further question? 

H Section 18. 

12 DR # BARD: The style of all laws of this State 

13 shall be, be it enacted by the General Assembly of 

14 Maryland, and the General Assembly shall enact no law 

15 except by original bill, and every law enacted by the 

16 General Assembly shall embrace but one subject, and that 
IV shall be described in its title, and no law nor Section 

18 of law, shall be revived or amended by reference to its 

19 title, or Section only, nor shall any law be construed 

20 . by reason of its title to grant powers or confer rights 

21 which are not expressly contained in the body of the act, 



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and it shall be the duty of the General Assembly in a 
meeting any Article or Section of the Code of Laws of 
this State to enact the same as the said Article, or 
Section would read when amended. 

That follows pretty much what we did last time. 

THE CHAIRMAN: Any questions or comments? If 
not, then the last part of your Report deals -- 

DR. BARD: The last part deals with our own 
requests, not yours, but ours, that we review those 
Sections that we felt we had recommended as needing to be 
deleted and what might be done and the last page, Page 12, 
indicates our decisions in respect to Sections 30, 32, 
34 and 35, and we certainly wish that anyone who is 
serving on the Committee where we refer to the subject 
matter belonging to it, by way of illustration, Section 
32, feel free to indicate that W2 ought to be doing it, 
not they, but here we are indicating, that. 

THE CHAIRMAN: So we will know where we stand, 
let's take up each one. 

First, Section 30, you recommend there be. no 
counterpart in the Constitution. 



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DR. BARD: That is right. 

THE CHAIRMAN: Any comment about that? 

DR. BARD: It is a procedural aspect. The 
provisions of this Section have been elaborated upon in 
Section 52. 

THE CHAIRMAN: This deals with Section 32 now. 

DR. BARD: 32, but it also gets into Section 
52, and we feel that the Committee on State Finance and 
Taxation — 

MR. BROOKS: This has already been brought to 
the attention of the Finance Committee, and they have 
agreed to incorporate it in their recommendation. 

THE CHAIRMAN: Any question or comment? Sec- 
tion 34. 

DR. BARD: Falls under the jurisdiction of the 
Committee on Finance and Taxation. 



meeting. 



35. 



MR. BROOKS: It will be reported on at this 



THE CHAIRMAN: Any further comment. Section 



DR. BARD: This did take much more of our time 



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than the others. The Committee recommends the deletion 
of this Section. The prohibitions in this Section are 
appropriately handled by statute. The Committee sees no 
reason why the compensation of a public official should 
not be increased in his office, provided he has not been 
in a position to withhold. This has come up where some 
of the officeholders in Baltimore City, you will see 
that Baltimore City is dragged into this, the Committee doe 
suggest that the Committee on the Executive Department 
might want to consider provisions to consider decreases 
in the salary of public officers during their term of 
office. 

THE CHAIRMAN: Any comment or question? 

DR. BARD: My final comment would be, we feel 
this completes with the assignments you have given, our 
responsibility except for the very heavy one in connection 



17 


with unicameral and bicameral which will come up at the 


18 


next meeting. 


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THE CHAIRMAN: Thank you, Dr. Bard. 


20 


Mr. Sayre? 


21 


MR. SAYRE: It seems to me appropriate to have 




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a Section in this Article that denies the power of the 
Legislature to enact local legislation except as pro- 
vided under the Article. 

THE CHAIRMAN: I think we better defer that 
until we consider the Report of the Committee on Local 
Legislation if we can. 

MR. SAYRE: It was just sort of hanging. We' 
can't do anything about it. But it would be an additional 
sector. 

THE CHAIRMAN: I would like to start now with 
the consideration of the Report of the Committee on the 
Executive Department. If you can make your general 
comments, Judge Adkins , we can be thinking about it dur- 
ing dinner. 

JUDGE ADKINS: There are two very relatively 
simply problems dealt with in this Report. The first is 
a succession to the office of governor, in the event the 
office should become vacant, and the second question is the 
government's veto power. Generally speaking, the succes- 
sion to office provided is from the governor to the 
lieutenant governor. In the absence of both of those 



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gentlemen, to the President of the Senate. We make no 
further provision beyond that since the President of the 
Senate being an ex officio officer will always be present 
to take over. I don't think any particular introductory 
comment is necessary, Mr. Chairman. 

THE CHAIRMAN: Go right ahead to the first 
Section. 

JUDGE ADKINS: Want me to read it? 

THE CHAIRMAN: Yes. 

JUDGE ADKINS: Section (a) reads: If the 
governor-elect dies, resigns, or is disqualified follow- 
ing his election, but prior to taking office, the 
lieutenant governor elected with him shall succeed to the 
office of governor for the full term. If the governor- 
elect fails to assume office for any other reason, the 
lieutenant governor elected with him shall serve as acting 
governor. If the governor-elect does not assume office 
within six months of the beginning of the term, the office 
of governor shall be vacant. 

THE CHAIRMAN: Any question on Section (a)? 

DR. BURDETTE: I do not know what it means, the 



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last words, the office of the governor can be vacant. 

JUDGE ADKINS: There is a later provision that 
provides for the filling of a vacancy. There are two 
concepts, one for the acting governor and one for the 
acting governor to succeed when the vacancy may occur prior 
to the time the governor is actually sworn into office. 

THE CHAIRMAN: Anything further, comment or 
question? If not, we move on to Section (b) on Page 2. 

JUDGE ADKINS: That Section deals with the 
amount of disability. 

If the governor notifies the lieutenant governor 
in writing that he will be temporarily unable to carry out 
the duties of his office or if the governor is disabled 
and thereby unable to communicate such inability to the 
lieutenant governor, the lieutenant governor shall serve 
as acting governor in writing that he is able to carry 
out the duties of his office. If the governor does not 
notify the lieutenant governor in writing that he is 
able to carry out the duties of his office within six 
months from the time the lieutenant governor begins serv- 
ing as acting governor, the office of governor shall be 



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1 

vacant . 

In other words, if there is a disability that 
occurs, the lieutenant governor becomes acting governor, 
in the event the disability exists for six months or 
longer, the office would be declared vacant and the lieu- 
tenant governor would become governor. 

THE CHAIRMAN: Any question or comment. Dr. 
Michener? 

DR. MICHENER: This may be anticipating, but 
I think there is a conflict between this provision and a 
later one. If the governor does notify the lieutenant 
governor that he is able to carry out his office, the 
duties of his office, then I take it, it is implicit here, 
the office of the governor does not become vacant. 

15 JUDGE ADKINS: That is correct. 

16 DR. MICHENER: But there is nothing here to 

1 7 

state if the notification to the governor is factual or 
not, and in President Wilson's case, the actions carried 
out in his name were actually in effect or not, and all 
you have here in an indication signed by another governor. 
You stop the whole procedure. 



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JUDGE ADKINS: That is a touchy problem, and 
one we have not had the wisdom to deal with, but the 
residual power given to the Supreme Court and the Court 
of Appeals on Section (e) , Page 4, would be our answer to 
that current problem. 

THE CHAIRMAN: Or wouldn't the General Assembly 
under your Paragraph 2? 

JUDGE ADKINS: The General Assembly could have 
the power to on its motion by the next Section to -- 

DR. MICHENER: This is where I saw a possible 
conflict because this does not limit. Section 1 does not 
put such a limitation on it. There are few alternative 
measures here, methods here which could be in conflict. 
And there is no provision, which shall be supreme. 

JUDGE ADKINS: I don't see how they could be 
in conflict since they are alternatives. It -- maybe I 
don't understand theimport of the question. If you are 
suggesting that the governor having given his notice of 
disability, then attempted to withdraw his notice of dis- 
ability, that would be, if that were then followed by a 
two-thirds vote of the General Assembly relative to 



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1 disability, it would seem to me necessarily that the 

2 two-thirds vote of the General Assembly would prevail ■ 

3 because they are not exclusive remedies. They are alter- 
* nate remedies, and if either occurs, the governor is, in 
5 fact, considered to be disabled. 



6 THE CHAIRMAN 

7 JUDGE ADKINS 



8 THE CHAIRMAN 

9 



20 



But the cycle could start again. 

The cycle would start again. 

Does that answer your question 
now? 

10 DR. MICHENER: Then you didn't mean if he 

H doesn't give the notice, the office shall not be vacant, 

1* because you don't have to mean that when I asked you the 

13 first question. 

14 JUDGE ADKINS: You will have to say that again. 

15 DR. MICHENER: It still could become vacant 

16 through action of Section 2 on this first Section, if the 

17 governor does notify the lieutenant governor in writing, 

18 if he is unable to carry out the duties of his office, the 

19 office of the governor shall not be vacant. I asked you 
if that is what it meant, and I understood you to say Yes. 



21 THE CHAIRMAN: It would not be unless the 



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Legislature acted and in that event, it would be. 




2 


DR. MICHENER: There is a proviso in there. 




3 


THE CHAIRMAN: Any further question? Section 2. 




4 


JUDGE ADKINS: The General Assembly may by a 




5 


two-thirds vote of all members in joint session pass a 




6 


declaration stating that the governor is unable to carry 




7 


out the duties of his office by reason of a disability, 




8 


including, but not limited to, physical or mental dis- 




9 


bility. If the General Assembly passes such a declaration, 




10 


it shall be delivered to the Court of Appeals, that will, 




11 


of course, become the Supreme Court, which shall have 




12 


original, exclusive and final jurisdiction to determine 




13 


whether the governor is unable to discharge the duties of 




14 


his office by reason of such disability. If the Court of 




15 


Appeals determines that the governor is unable to discharge 




16 


the duties of his office by reason of a disability, the 




17 


office shall be vacant. 




18 


THE CHAIRMAN: Any question? 




19 


Mr. Martineau? 




" 20 


MR. MARTINEAU: Yes, I wonder if there shouldn't 




21 


be some provision in here for someone being able to call 






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the General Assembly into session to consider this, if you 




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would have the notification from the governor or from the, 




3 


whoever is signing his name, come at the end of the legis- 




4 


lative session, then nothing could be done over a period 




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of approximately nine months, and there would be no one 




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able to call the General Assembly into session. Did the 




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C ommittee consider that? 




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JUDGE ADKINS: No, frankly, I don't think we 




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did. 




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THE CHAIRMAN: Had you finished your comment, 




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Judge Adkins? 




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JUDGE ADKINS: We did not consider it. 




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MR. MILLER: That is another reason for having 




14 


the Legislature a continuing body. 




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MR. MARTINEAU: If there is a question on the 




16 


lieutenant governor, he would be able to call the Legislatur 


e 


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into session to have a decision on this. 


i 


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JUDGE ADKINS: My offhand opinion would be 




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that that would be a pretty dangerous weapon to give to 




20 


the lieutenant governor, and I would think perhaps that 




21 


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might be less damaging than having the potential con- 
flict of the lieutenant governor calling the Legislature 
into special session, but this is not a Committee opinion, 
because we didn't consider it. 

THE CHAIRMAN: VJould you consider the suggestion 
so that you can report on it? 

MR. MARTINEAU: Not necessarily the lieutenant 
governor, but someone be authorized if a question arises 
as to the governor's ability to carry out the duties of 
his office, some procedure for getting the General Assembly 
in session. 

JUDGE ADKINS : We will make a note of that . 

DR. BURDETTE: This matter is taken care of by 
Item 1 by which the lieutenant governor on his own motion 
may decide, this is Page 2, that he must act as governor, 
and if he is acting as governor, he can call the General 
Assembly; and it seems to me that an honorable man very 
likely would in order to rectify his judgment that the 
governor is incapacitated. 

JUDGE ADKINS: I don't think that analysis would 
work because the one case in which the lieutenant governor 



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could assume the office of governor without a written 




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statement of the governor would be whereby the governor 




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was in a coma. If the lieutenant governor attempted to 




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assume the office when the governor was still on his feet, 




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the governor could just give him the written notice 




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indicating he was still serving as governor, and the 




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lieutenant governor would have no power to call the Legis- 




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lature into session. 




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DR. BURDETTE: I don't think that would be 




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very bad . 




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DR. JENKINS: I seem to recall that we are 




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going to have a provision whereby the General Assembly 




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may convene itself without the call of the governor. 




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TEE CHAIRMAN: I thought we had done that, but 




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I just checked with Mr. Brooks , and he told us we voted 




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it down . 




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We will have to stop now because we must main- 




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tain a schedule. Dinner will be probably at 6. 




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(Whereupon the Commission adjourned, to re- 




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convene following dinner.) 




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CONSTITUTIONAL CONVENTION COMMISSION 



EVENING SESSION 
Sunday, September 18, 1966, 7 o'clock 



Appearances as heretofore noted. 



Reported by: 
W. P. Banister 



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x THE CHAIRMAN: Shall we go ahead? We are 

2 on paragraph (c) on page 3. We are resuming consideration 

3 of the Fifth Report of the Committee on the Executive 
^ Department. 

5 JUDGE ADKINS: (c) Vacancy in Office . If 

g for any reason a vacancy occurs in .the, of f ice of governor, 

n the lieutenant governor shall succeed to the office of 

q governor for the unexpired term. 

9 The term vacant or vacancy has been used in 

1Q earlier sections and I think needs no further explanation 

H on my part. 

12 THE CHAIRMAN: Are there any comments or ques- 

13 tions as to this subdivision? 

14 DR. MICHENER: We haven't provided for the 

15 constitutional post of president of the Senate. The Com- 
15 mittee on Style may want to change the wording slightly. 
17 JUDGE ADKINS: It may be that we will want to 

use the presiding officer of the Senate rather than 

] :. presidency of the Senate. That may be a problem for the 

20 Committee on Style. 
2i THE CHAIRMAN: Go ahead. 



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JUDGE ADKINS: Governor and Lieutenant Gover - 
nor , If for any reason a vacancy occurs in the office 
of both governor and lieutenant governor, the president 
of the Senate shall succeed to the office of governor 
for the unexpired term. If for any reason the office 
of lieutenant governor is vacant when the lieutenant 
governor is to serve as acting governor, the president 
of the Senate shall serve as acting governor. 

That is self-explanatory. 

THE CHAIRMAN: Is there any. quest ion or comment? 

MR. CASE: This probably stems from the fact 
that I have not read the full report, but how long does 
he act as acting governor? 

JUDGE ADKINS: Six months. After six months, 
the office is declared vacant, and the lieutenant governor 
would then become governor. That is provided for in an 
earlier paragraph. 

MR. CASE: There isn't any lieutenant governor, 
is there? 

JUDGE ADKINS: Maybe I don't understand the 
import of your question. 



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MR. CASE: If for any reason a vacancy occurs 
in the office of both the governor and lieutenant gover- 
nor, the president of the Senate serves for the unexpired 
term. This means that there will be no -- 

JUDGE ADKINS: There will be no lieutenant 
governor in that event. There will be none. 

MR. CASE: So the president of the Senate can 
become a governor? 

JUDGE ADKINS: That is right. The office of 
lieutenant governor is not filled. We simply await the 
next general election to fill the office of both gover- 
nor and lieutenant governor. 

MR. CLAGETT: I have a question there. If he 
is other than a figurehead and has duties and responsi- 
bilities, who will take care of those duties and responsi- 
bilities? 

JUDGE ADKINS: If the lieutenant governor is 
other than a figurehead? 

MR. CLAGETT: Yes. 

JUDGE ADKINS: Those responsibilities would not 
be covered under this proposal until such time as a new 



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^ lieutenant governor was elected. Our thinking was in the 

2 event of this rather remote set of contingencies, the 

5 State could live without a lieutenant governor for the 

4 period of time necessary to await the next election with- 

g out going through the mechanics of filling the vacancy. 

6 DR. MICHENER: The same thing is true with the 

7 lieutenant governor? 

8 JUDGE ADKINS: Yes. 

9 DR. MICHENER: I would note in regard to taking 

10 care of this vacancy in terms of the vice-president of 

11 the United States -- because that occurred so many times -- 

12 the vice-president is assuming more power. There has 

13 been no law of succession there, but have you given that 

14 any thought? 

15 JUDGE ADKINS: There are no constitutional 

15 duties given to the lieutenant governor under this pro- 

17 posal. He shall have such duties as the, well, really 

18 as the chief executive shall assign to him. That being 

19 the case, if the president of the Senate became governor, 

20 he could simply reassign those duties among his existing 

21 personnel without having any particular hiatus in authority 



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I think your problem would be more acute if 
we had assigned certain constitutional responsibilities 
to the lieutenant governor which, however, we have not 
done. He is basically a ceremonial officer, I suppose, 
having such responsibilities as the governor shall assign. 
We have not thought it necessary to provide continuous 
succession for lieutenant governorships as well as gover- 
norships . 

THE CHAIRMAN: Any further questions or comment? 
Subsection (d) . 

JUDGE ADKINS: (d) Status of Successor . If 
the lieutenant governor or the president of the Senate 
succeeds to the office of governor, he shall have the 
title, powers, duties and emoluments of the office, and 
if the lieutenant governor or the president of the Senate 
serves as acting governor, he shall have the powers and 
duties of the office. If the president of the Senate 
serves as acting governor, he shall continue to be the 
president of the Senate. 

The significance here is the fact that if the 
lieutenant governor or president serves as acting governor, 



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1 he does not assume the emoluments of the office. 

2 MRS. FREEDLANDER: I would like to speak to 

3 that. Judge Adkins , if the legislature is in session 

4 and the presiding officer is serving both as the governor 

5 as well as presiding officer of the Senate, there would 

6 be quite a bit of difficulty, it seems to me, particular- 

7 ly if you have a budget going through. There might be 

8 a conflict of interest, so to speak. It would be import- 

9 ant for the presiding officer of the Senate to be on 

10 the job full-time, as it would be for the governor. 

11 JUDGE ADKINS: We wrestled with that problem. 

12 In our thinking I was for a six-month period. It was not 

13 fair to ask the president of the Senate to disqualify him- 

14 self or disqualify himself by this Constitution from 

15 being president of the Senate, because you would be in 

16 the position of having a president of the Senate for six 

17 months governor and at the end of six months, if the 

18 governor resumed his office, the president of the Senate 

19 would be out. We felt it essential to leave him in as 

20 president of the Senate with the tacit understanding that 

21 the job of president of the Senate v?ould then devolve on 



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. the president pro tern. We saw no way to resolve this. 

2 We didn't think it fair to have the president of the 

Senate disqualified from being president, if he became 
o 

, acting governor. 

_ So that was our solution. Whether there is a 

o 

- better solution, if there is, we are open to suggestion. 

„ This can only exist for a period of six months. 

Q MRS. FREEDLANDER: The six months could be the 

o critical six months. It could be January through March. 
10 JUDGE ADKINS: That is right, it could be the 

^^ critical six months, but in that event the president of 

22 the senate would be serving in a dual position, and pre- 

,~ sumably his duties as president of the Senate would then 

■y* devolve upon the president pro tern. 

n j. DR. JENKINS: It seems to me this ought to be 

i 
, fi left to the Senate, which elects the president of the 

Senate. I would prefer to see this read that the presi- 
dent of the Senate serve as acting governor, that when he 
serves as acting governor, he shall not be disqualified 
from serving as president of the Senate, leaving to the 
Senate this decision as to whether he should continue. 



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JUDGE ADKINS: Let's hear from the reporter 



first. 



MR. POWER: One problem we are faced with here 
that hasn't been broached is this, assume the president 
of the Senate takes the job of acting governor. If, 
after six months , the governor has not again become 
capacitated, the presiding officer of the Senate becomes 
governor. What could happen then is if the presiding 
officer of the Senate does not continue to be the presiding 
officer of the Senate, he would be taken out of the line 
of succession. This is the internal drafting problem. 
I don't know if I am expressing myself. 

One purpose for the clause is to make clear 
when a presiding officer of the Senate has become acting 
governor six months, he then becomes governor. 

MR. MARTINEAU: Can't you handle it the same as 
you do anything else? You don't provide for someone to 
take over the office of the president of the Senate. 
You merely provide that the Senate shall elect somebody 
during the interim to carry out the duties. 

JUDGE ADKINS: If I understand the import of 



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this discussion, the problem is if he ceases to be presi- 




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dent of the Senate, he then ceases to be acting governor. 




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MR. MARTINEAU: I don't mean that. When I say 




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you have the Senate elect someone to serve as acting 




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president of the Senate, he is not the president of the 




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Senate any more than the president of the Senate is gover- 




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nor because he is acting governor. You draw the distinct- 




8 


ion between acting governor and one who holds the office 




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of governor, the same for lieutenant governor. I don't 




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•• * 

see why you don't 'do the same thing for the president of 




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the Senate. 




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THE CHAIRMAN: As though you added to that 




13 


sentence a phrase saying, but the duties of the president 




14 


of the Senate shall be performed by the president pro tern. 




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JUDGE ADKINS: I would have no objections to 




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that. It seems that is inherent because I think the 




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duties of the president of the Senate would devolve upon 




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the president pro tern; but if you feel it is necessary 




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* 

to spell it out in the Constitution, I at least would 




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have no objection to that amendment. 




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DR. BURDETTE: I think it is desirable because 






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the reader of the Constitution will bring up, as I did 
in my own department, the same point Mrs. Freedlander 
brought up. It implies that we are breaking down the 
principle of separation of powers. It could be argued 
that the Constitution expressly provides he shall be 
president of the Senate and that, unless he himself were 
incapacitated, could not be removed from that function 
even by the Senate. He certainly could stick with that 
from this language. I very much endorse that. 

THE CHAIRMAN: Is there any objection to the 
addition of some such phrase as was suggested? 

MR. SAYRE: We discussed this very point, and 
I think it would be desirable to clarify because it is 
not clear unless you go through it all. If we said, 
But the duties of the president shall devolve upon the 
Senate, shall devolve upon the president pro tern -- 

JUDGE ADKINS: That is the phrase we are talk- 
ing about, trying to phrase it exactly. 

MR. SAYRE: I think it would be desirable to 



have that. 



THE CHAIRMAN: Is there any objection to the 



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addition of such a phrase? 

MR. MARTINEAU: I have the objection of naming 
the officer. I think it would be better to devolve upon 
a person elected by the Senate or something, rather than 
naming an officer, and you would by the Constitution 
create another office which I would object to. 

JUDGE ADKINS: You would not use the words 
president pro tern? 

MR. MARTINEAU: That is right. 

JUDGE ADKINS: All right, leave it up to the 
drafting. 

THE CHAIRMAN: Leave it to the committee with 
the idea that you would add a phrase indicating the duties 
of the president of the Senate would devolve upon the per- 
son upon whom those duties would devolve by election of 
the Senate or whatever. 

MR. CLAGETT: That would be a very good thing 
because it would also avoid a period where the Senate 
may be preoccupied in the event of the loss of the presi- 
dent of the Senate while acting as governor. There could 
be a period where they would have to elect a president 



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1 of the Senate in order to succeed to the vacancy by the 

2 death or disability or some other reason of the then 

~ acting governor who would be the president of the Senate. 

4 So it would already have been accomplished. 

5 THE CHAIRMAN: In the absence of objection, 
g a change will be made by the committee. Are there any 

7 further comments as to subsection (d)? If not, we go 

8 to ( e )- 

9 JUDGE ADKINS: (e ) Jurisdiction over Questions 

10 of Vacancy and Succession . The Court of Appeals shall 

11 have original, exclusive and final jurisdiction to 

12 determine the existence of a vacancy in the offices of 

13 governor and lieutenant governor and all questions con- 

14 cerning succession to these offices or to the powers 
■tc and duties thereof. 

-.g I think the reason for that is reasonably clear 

iy without further comment. 



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MR. HAILE: The last three lines -- and all 
questions concerning succession to these offices or to 
the powers and duties thereof -- that bothers me every time 



2i I read it. It seems to me that is not germane to the 



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1 tenor of this section in that the last seven words should 

2 be omitted -- or to the powers and duties thereof -- 

3 should be omitted or deleted. Therefore, I move that 

4 they be deleted. 

5 JUDGE ADKINS: I would make one comment. I 

6 think perhaps the language might be clarified, but the 

7 intent is to give the Court of Appeals power to decide 

8 if any question should arise between the divergence of 

9 responsibilities or duties between the acting governor and 

10 the governor, the Court of Appeals would have the right 

11 to decide those questions. 

12 MR. HAILE: That would be covered by the phrase, 

13 all questions concerning succession to these offices -- 

14 all questions. 

15 THE CHAIRMAN: I am not sure that would follow. 
15 JUDGE ADKINS: I wouldn't think it would follow. 

17 If he succeeds as governor, there would be no question. 

18 If he succeeded as acting governor, there might very well 

19 be some questions that would arise during the hiatus 

20 period. That was the reason for adding the last clause. 

21 THE CHAIRMAN: Couldn't you have some difficulty 



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occur under this section if you had a question arise as 
to the powers or duties of the governor entirely in- 
dependent of this disability question, the contention 
being made that the only Court that would have juris- 
diction to decide the question would be the Court of Ap- 
peals? 

JUDGE ADKINS: I am confident that argument 
could be made since you just made it, but aside from that, 
I would think it a rather tortured construction of the 
language. Since the language refers to original, ex- 
clusive and final jurisdiction to determine the existence 
of a vacancy in the offices of governor and lieutenant 
governor, I should think that would qualify, but if there 
is any question about it, we probably should clarify. 

THE CHAIRMAN: It seems it could be easily 
clarified by tying down the question of powers and duties 
to the things you are talking about here. 

JUDGE ADKINS: We would be glad to do that. 

DR. WINSLOW: I suggest, sir, that I think in- 
sertion of one word might do it -- or to the powers and 
duties involved therein -- which is the case of involving 



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succession, which is what you mean, isn't it? 

2 DR. BURDETTE: No, it would be involving the 

office. 
3 

^ THE CHAIRMAN: Resulting from the problem of 

succession. 
5 

6 JUDGE ADKINS: We could say from the powers 

and duties involved in succession thereof. 

THE CHAIRMAN: Wouldn't it be better to con- 
sider it? 

JUDGE ADKINS: Yes. 

THE CHAIRMAN: Mr. Haile made a motion. Did 



7 

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9 

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11 

1? anybody second it? That was to delete completely the 

last seven words. Is there a second? 

MR. CASE: Do you mean to delete it completely 
or clarify it the way it has been discussed here? 

MR. HAILE: If it is clarified, that will remove 
my objection. It seems to me that even if the lieutenant 
governor serves as governor, he ought to have the juris- 
diction to determine his own powers and separation of 
powers. The phrase as it exists now is too broad to say 
_. the Supreme Court has the final say on what power the 



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1 governor has. Original jurisdiction and final juris- 

2 diction to determine all questions relating to powers of 

3 the governor and duties thereof. 

4 MR. CASE: Don't powers and duties flow from 

5 the office itself? Once the office is established, the 

6 powers and duties necessarily follow. 

7 MR. HAILE: I don't see the reason for this 

8 phrase. 

9 MR. CASE: I second the motion. 

10 THE CHAIRMAN: The motion is to delete the last 

11 seven words -- or to the powers and duties thereof. Any 

12 discussion? 

13 MR. POWER: I think some words are necessary be- 

14 cause in drafting the article, I, for one, did not assume 

15 that acting governor was an office at all but, rather, 
15 this was just a transfer of duties and powers on a temporary 
17 basis to somebody holding another office. I think the 
10 language is necessary in order to accomplish this, although 
19 perhaps too broad in its present form. 

v MR. CASE: If you are dealing with a vacancy, 

21 as I understand this, you don't have an acting governor, 



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10 



^ you only have an acting governor when there is no vacancy, 

2 but the office still being filled, the incumbent is unable 

„ to act. Is that correct? 

4 JUDGE ADKINS: The point is well taken. 

MR. POWER: Yes. 
o 

6 JUDGE ADKINS: This article specifically limits 

„ it to existence of a vacancy, powers and duties, alloca- 

q tion of powers and duties in the event of a vacancy and 

o who succeeds to the vacancy. 

MR. CASE: Once you fill the vacancy, the powers 

■q and duties seem to me to follow. 

12 JUDGE ADKINS: I think this is true. 

13 THE CHAIRMAN: Is it intended that the section 

,4 be limited to that? 

JUDGE ADKINS: Yes, to be limited to that. 
Id 

MR. POWER: I am not sure. Perhaps the caption* 
lo 

is what really is wrong because I think it was my decision 

, in drafting initially that if a question came up concern- 
lo 

ing whether or not the lieutenant governor had the powers 
to act as governor under one of the provisions of this 



19 
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act as governor, this was exactly the type of question 
you wanted the Supreme Court to decide in the exercise 
of its original jurisdiction. Perhaps the caption is what 
is really in error. 

MR. CASE: Not the caption. It is the body of 
the text that says, determine existence of a vacancy. 

THE CHAIRMAN: I think his point is that he is 
thinking the first part of the sentence dealing with 
vacancy, the second part dealing with succession relates 
to vacancy, but there is a third part, the powers and 
duties thereof, not limited either to vacancy or success- 
ion. 

MR. CASE: It could be taken out of here and put 
someplace else. It doesn't belong here. 

MR. HAILE: In that connection, it already does 
appear in paragraph (d), the preceding page -- if the 
lieutenant governor or the president of the Senate suc- 
ceeds to the office of governor, he shall have the powers, 
duties, and emoluments of the office. 

THE CHAIRMAN: I understood Professor Power was 
talking about the question of who was to decide this. 



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1 His point, if I follow him, was that the. question of the 

2 right to act as acting governor might have to be decided 
« by the Court of Appeals. 

4 MR. HAILE: I agree. That would be a question 

c concerning succession. 

6 THE CHAIRMAN: He makes a point that it isn't. 

7 Succession would be succeeding to the office and not 
q succeeding to the powers. 
9 MR. MINDEL: Mr. Chairman, I am a member of 

10 this committee, but in looking at this, it strikes me that 

H perhaps we could stop where we say the Supreme Court 

12 shall have the jurisdiction concerning the determination 

12 of the existence of a vacancy in office of governor and 

14 lieutenant governor. I think we ought to spell out in 

15 the Constitution the method of succession. 

16 The Constitution ought to say who shall succeed. 
I17 I can see where there might be a question whether there 

is a vacancy. It seems to me when it comes to succession, 

19 the Constitution should say lieutenant governor, president 



20 



of the Senate, or whoever. Why do we give the Court the 



21 power to determine who shall succeed to the governorship? 



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MR. POWER: Mr. Mindel, I thought we had spelled 
out the order of succession to the office of governor 
in exactly the terms you indicated. The last section 
is intended only to create an unusual type jurisdiction 
in the Supreme Court to make the determination, so that 
you would start in the Supreme Court. I don't see how 
the two are inconsistent. 

THE CHAIRMAN: As I understand Professor Power- - 
if I am incorrect about this, please correct me -- what 
you say you were trying to do in this section is to con- 



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fer on the Supreme Court jurisdiction to determine the 



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fact as to whether a vacancy existed, as to whether the 
governor was or was not disabled and, hence, whether some- 
body else was authorized to act as governor. 

MR. POWER: That is right. 

THE CHAIRMAN: In the event of temporary dis- 
ability. 

MR. CASE: That is not what it says. 

THE CHAIRMAN: I understand. I wanted his pur- 
pose first. Is that correct? 

MR. POWER: That is correct. 



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THE CHAIRMAN: Is that the purpose of the com- 


2 


mittee? 


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JUDGE ADKINS: That is my understanding, yes. 


4 


MR. SYKES: I suggest as to this language that 


5 


if that is what the committee did mean, I would move that 


6 


the language be amended to read: To determine the exist- 


7 


ence of a vacancy in the offices of governor and lieutenant 


8 


governor and all questions arising under this section 


9 


concerning the right to office or the exercise of the 


10 


powers thereof. 


11 


THE CHAIRMAN: Rather than pass on that precise 


12 


language, would you amend your motion to suggest it to 


13 


the committee? 


14 


MR. SYKES: Yes. 


15 


MR. BOND: Second. 


16 


THE CHAIRMAN: Is there any discussion? 


17 


MRS. FREEDLANDER: Mr. Chairman, there is a 


18 


motion on the floor, Mr. Haile's motion. 


19 


MR. HAILE: I yield to that. I think it is an 


20 


improvement . 


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DR. BURDETTE: Is the word exclusive in this? 




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1 THE CHAIRMAN: He hasn't touched that. That 

2 is a separate question. Let's hold it a moment. The 
motion is for the committee to reconsider this section 

4. with certain language V7hich Mr. Sykes has just read. 
c Would you read it again, Mr. Sykes? 

q MR. SYKES: The Court of Appeals shall have 

7 original, exclusive and final jurisdiction to determine 
q the existence of a vacancy in the offices of governor 
g and lieutenant governor and all questions arising under 
this section concerning the right to office or the exer- 
1\ cise of the powers thereof. 

12 DR. BURDETTE: Mr. Chairman, this is exactly 

i, the question I am going to raise. Maybe a lawyer has a 
14 different interpretation of the word exclusive, but it 
jc seems to me the word exclusive runs in conflict with (b) 
(i) which describes how a vacancy shall occur. If it is 
•i™ exclusively in the Court of Appeals to determine how a 
Tg vacancy occurs, the Constitution has nothing to say about 
it. 

THE CHAIRMAN: I think your point is well taken 



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2\ I think also the similar but not the same comment should 



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be made as to the use of the word final. I wonder why 


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we need anything except original jurisdiction. 


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MR. MARTINEAU: I was going to make the same 


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point. You can ha\e original or exclusive, but you don't 


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need all three. 


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THE CHAIRMAN: Would you want to comment? 


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JUDGE ADKINS: I don't really see the problem 


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here, except for the fact that exclusive and final may 


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be redundant. Obviously, if the Court of Appeals or the 


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Supreme Court of Maryland has original jurisdiction, it 


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also has final jurisdiction. 


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MR. MARTINEAU: It has final jurisdiction under 


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any circumstance. 


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JUDGE ADKINS: There is no appeal beyond that, 


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and to that extent I think the language might be redundant. 


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I think the word exclusive perhaps also falls in the same 


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category. 


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THE CHAIRMAN: Would you delete it? 


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JUDGE ADKINS: I would suggest that this section 


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be referred back to us, in view of these comments, for us 


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to restudy it. 




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1 THE CHAIRMAN: Did you withdraw your motion, 

2 Mr. Haile? 

3 MR. HAILE: Yes, sir. 

4 THE CHAIRMAN: The suggestion of the chairman 

5 of the committee is that the section be referred back to 

6 him with these comments. Would you withdraw your motion 

7 on that basis, Mr. Sykes? 

8 MR. SYKES: Yes, sir. That was my motion any- 

9 way . 

10 MR. MILLER: One comment, Mr. Chairman. It 

11 seems to me that when they revise the language, it should 

12 be so worded that if the governor dies in office, since 

13 no action of the Supreme Court is necessary to have the 

14 lieutenant governor become the governor, it sounds as 

^5 though some step was required in any case by the Supreme 

15 Court, which I don't think is intended. 

17 JUDGE ADKINS: I would think that is clear from 

1Q the reading of the whole section in its entirety, con- 

19 gressman. It is pretty flatly stated in the earlier 

20 sections of the statute if the vacancy does occur, if it 

21 is a clear-cut vacancy, the lieutenant governor succeeds. 



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It is only in the event of a cloudy situation where some 
_ question arises as to whether a vacancy has occurred 

that this section would become operative. 

^ MR. MILLER: I agree, but I don't think that is 

what it says. You wouldn't have to go through a for- 
5 

6 mality of having the Court determine that there was a 
„ vacancy, that he was dead. 
8 THE CHAIRMAN: Judge Adkins , a somewhat similar 

q question came up in connection with the report of the 
, Q Legislative Committee. I think the Commission decided 
-.-. at the last meeting it should expressly refer to action 
of the Supreme Court on petition to be filed. In recon- 
sidering this, you might consider some such mechanic 
which would meet Congressman Miller's point. 

MR. MARTINEAU: It seems to me that this whole 
section could be covered by language to the effect that ' 
the Supreme Court shall have exclusive jurisdiction to 
determine all cases arising under this section. 

THE CHAIRMAN: The committee can consider it. 
Are there any other suggestions for the committee to con- 
sider in connection with this section? Any other comment 
or debate on that section? If not, we go to the question 



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1 of veto power. 

2 DR. MICHENER: I didn't realize you weren't 

3 going to have further questions on Section (b). May I 

4 raise a question on that? 

5 THE CHAIRMAN: Yes. 

6 DR. MICHENER: As I understand it under 

7 Section 1, the governor can notify the lieutenant gover- 

8 nor voluntarily that he is unable to carry out the duties 

9 of his office, and thereupon there starts running a six- 

10 month period. 

11 Under Section 2, two days later the general 

12 assembly on its own motion could declare the governor 

13 disabled, in which case the lieutenant governor would be 

14 eligible to take over immediately. This is the conflict 

15 I referred to at the start. The one presupposes a six- 

16 month period, the second one does not. 

17 Another question I would like to raise is, if 

18 a six-month period is desirable, if the governor himself 

19 says he is incompetent, why is there not a comparable 

20 six-month period when the Assembly declares him incom- 

21 petent? 



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-. I make the observation that just recently in 

2 Louisiana the governor was committed, with the connivance 

_ of his wife and the head of a mental institution, to 

4 an institution, and it was shortly thereafter found that 

5 he was competent, but under this there is no redress, he 
g would have been out. 

? THE CHAIRMAN: Let's take up the first one first 
q Do you have it in mind, Judge Adkins , or do you want it 
g restated? 
10 JUDGE ADKINS: As I understand the doctor's corn- 
el ment, it is to the effect that there is a potential con- 
12 flict in the two sections. The philosophy back of 
-,3 Section 1 is to permit the governor, in the event of a 
14 physical disability or a time when he knows he is in- 
,j- capacitated, to authorize the lieutenant governor to carry 
-j g on his duties . 

,„ This is likely to be of temporary duration, in 

}o our thinking at least. We put the six-month limitation on 

19 it. I would assume that if you could convince the General 

20 Assembly that the man was wholly incapacitated, they could 

21 pass the two- thirds vote required and thereby the office 



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would be vacant despite the operation of Section 1. 
But I don't really see any conflict here. 

You might have two actions at the same time, 
but I think there would be little question but what, under 
the language of these articles, the operation of Section 
2 would prevail. I don't know if it answers the question, 
but I don't see any way of resolving the conflict he poses 
if you get the situation he suggests. 

THE CHAIRMAN: Is there any further comment, 
Dr. Michener, on that point? 

MR. DELIA: I think there is one point that 
needs some study by the committee. If the governor would 
be incapacitated for a period longer than six months, 
let's just take a hypothetical and fictional theory for 
a moment. Suppose the governor and his wife go on a 
vacation somewhere, their plane comes down, they get lost 
for six months or a little over six months. Yet there 
is nothing, absolutely nothing, wrong with him. But by 
the time he gets back all this has taken place, and he 
is no longer governor. Yet he is perfectly okay to take 
over his job again. I think there should be some way to 



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safeguard a person's position if something like this 
would actually happen. 

JUDGE ADKINS: I think our answer to that would 
be, if he is lost for six months, we would have to assume 
he was out of office and a new man was put in. I don't 
see how we can provide an open-ended period of disability 
here. What are you going to make it? If he is gone a 
year and comes back -- at some point you have to transfer 
the authority and responsibility of the office to his 
successor. We elected six months. Maybe this is too short 
or too long. We would be willing to accept another time, 
but I don't see how we can leave it open-ended. 

DR. MICHENER: Maybe some other folks here with 
more experience could speak to it, but it seems unrealis- 
tic to ever expect a governor to declare himself volun- 
tarily incompetent. Under Section 1, if the Legislature 
would have his own admission that he was incompetent, 
they could immediately remove him from office. I don't 
think a governor would subject himself to this. If he 
didn't admit it, he would have a better chance to re- 
tain his powers . 



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1 JUDGE ADKINS: We use the word incapable, 

2 not incompetent. A man may know he is going to be hos- 
- pitalized for an extended period of time and want to 

4. devolve the duties upon his successor without at the 

c same time declaring himself incompetent. It didn't refer 

q to incompetency in Section 2 either. Both refer to in- 

ri capability. 

q If the governor knew that he was to be out 

g for a period of three or four months and wrote the 

lieutenant governor a letter saying, I will be out of 
H communication four months, will you take over, that is 

12 tne situation intended to be covered by this section. 

1§ I don't see how this could be used as admission against 

24 interest by the Legislature. 

15 MRS.BOTHE: This subsection just states that 

1£ the General Assembly by a two- thirds vote shall find the 

governor is unable to carry out the duties of his office. 
I assume that it is implicit in that it means he is per- 
manently, or for the balance of his term or for a period 

20 °f time, so long as to make it necessary to succeed him- 

21 self, but it doesn't say so. I query whether it should. 



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1 JUDGE ADKINS: We had thought the protection 

2 of a two-thirds vote was sufficient protection against 

2 that probability. Maybe we are optimistic. I can't con- 

4 ceive of the General Assembly voting to remove in essence 

g the governor from office unless they were quite sure his 

g disability were going to extend for a considerable period 

rj of time, I can't conceive of it being used based on a 

q temporary situation. 

9 DR. WINSLOW: May I ask the committee whether 

10 they considered the question of a governor being absent 

H from the State or absent from the Country? In a great 

12 many States, as you know, the lieutenant governor acts 

^3 as governor in the physical absence of the governor from 

14 the State. 

15 JUDGE ADKINS: We did consider that, and we 

-jg thought the language we used here, that he will be tempo-' 

l 7 rarily unable to carry out the duties of his office, was 

Tg broad enough to cover absence from the State, 
-jo DR. WINSLOW: But that is only on his own state- 

20 ment. 

JUDGE ADKINS: I assume if he is to be absent 



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1 from the State, there would be no reason for anybody 

2 other than he to designate a successor. If he thought 

5 he could fly to Europe and still carry on the duties of 
4 his office, that ought to be his decision and not some- 
g body else 's . 

6 THE CHAIRMAN: Is there further comment as to 

7 Section (b) ? 

8 MR. BOND: I would like to say these problems 

9 are very, very intricate and complicated and we did give 

10 a lot of thought to it. As you know, the Congress of 

11 the United States has been doing the same thing by amend- 

12 ment. 

13 I would observe I think it would be rather diffi- 

14 cult and unfortunate if the Commission bounced the whole 

15 thing back to the committee because I think we have done 
15 the best we can. 

1 7 JUDGE ADKINS: I say Amen to that. 

13 THE CHAIRMAN: Is there any further comment. 

19 MR. CASE: It has been a very good job. 

20 THE CHAIRMAN: If not, we will move on to the 

21 subject of the veto. 



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JUDGE ADKINS: We have rewritten this twice, 
first with the idea of a terminal session and second with 
the idea of a continuous session, now we are back to the 
veto for a seventy-day session. 

Section 1 provides: Veto by the Governor . 
(a) Scope . All bills passed by the General Assembly 
shall be subject to veto by the governor except budget 
bills and bills proposing amendments to the Constitution. 

I think these two restrictions are both inherent 
in the present Constitution. 

MR. CASE: With one minor exception. Supple- 
mental appropriation bills, which are also budget bills, 
are and should be subject to the governor's veto. 

MR. POWER: Mr. Case, not knowing exactly vhat 
your committee was going to do, I drafted this in light 
of the present article in the Constitution that deals with 
the executive budget whereby it classifies all bills as 
either budget bills or supplemental or appropriation bills. 

These are used in here as terms of art. So 
when I say budget bill, I intend the budget bill under 
the present Constitution, which is different from the sup- 



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, plemental appropriation bill. 

2 MR. CASE: So that it is understood in voting 

_ on this that -- 
o 

4 JUDGE ADKINS: Supplemental appropriations in 

5 our concept of this language would still be subject to 
g veto. 

7 MRS. FREEDLANDER: Judge Adkins , when you refer 

o to proposing amendments, bills proposing amendments, 

q the governor is not permitted to veto amendments to the 

^q United States Constitution. Is that applicable here? 

n THE CHAIRMAN: I didn't catch that. 

^2 JUDGE ADKINS: A resolution proposing an amend- 

13 ment. 

14 . MRS. FREEDLANDER: Yes, if Maryland adopts a 
, c proposed amendment to the United States Constitution, 

,- the governor is not permitted to veto that. Is that im- 

17 plied? 

18 JUDGE ADKINS: I would have to say in all 
honesty, I don't think that question arose at our com- 
mittee level. We had in mind amendments to the Constitu- 



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MR. BROOKS: With Constitution capitalized 
as here, it would indicate only the Constitution of Mary- 
land. The provision wouldn't speak on that question. 

MRS. FREEDLANDER: Do you think it should, Mr. 
Brooks? 

MR. BROOKS: I have no preference. 

MR. MILLER: I don't gather that in the question 
of amending the Constitution of the United States that 
the governor enters into the picture one way or the other. 

MRS. FREEDLANDER: That is right. 

MR. MILLER: The Federal Constitution requires 
the action of the Legislature. 

THE CHAIRMAN: That is what I was just looking 
for. I think the language is explicit, isn't it? 

MR. MILLER: That is right. 

THE CHAIRMAN: Does that answer your question? 

MRS. FREEDLANDER: Yes, thank you. 

THE CHAIRMAN: Any further question as to para- 
graph (a)? If not, we will move to paragraph (b) . 

JUDGE ADKINS: Action by the Governor . Every 
bill subject to veto by the governor shall be presented 



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to him within seven days after its final passage by 
the General Assembly and if the General Assembly is in 
session, it shall become law if the governor either 
signs or fails to veto it within ten days of presentation. 
If the General Assembly adjourns sine die before presenta- 
tion or during such ten-day period, it shall become law 
if the governor either signs or fails to veto it within 
forty- five days of presentation. 

The significant change here from the present pro- 
cedure is that we have tied it to final passage rather 
than presentation to the governor. The present provision 
provides that he shall act on it within -- is it six days 
or seven days? I think it is six days of presentation 
to him. 

The question of presentation we have found to 
be governed in large measure by the rules of the Legis- 
lature. We were not satisfied. We thought the time ought 
to be fixed to the final passage by the General Assembly. 
He in essence would have seventeen days from the final 
passage in which to either sign or veto. If he fails to 
veto it, it becomes law. 



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x THE CHAIRMAN: Are there any questions? 

2 MR. GENTRY: I wonder if there is any problem 

, with defining what you mean by presentation. 

4 JUDGE ADKINS: We have avoided that by tying 

g it to final passage. The present Constitution uses the 

q word presentation. We use the words final passage. We 

7 do use within ten days of presentation. 

8 MR. GENTRY: That is what I refer to. 

9 MRS. FREEDLANDER: After final passage, if 
10 there is some delay with the printer, and so on, or in 
H delivery or something, there would be that seven days 

12 that could diminish to five days or four days. 

13 JUDGE ADKINS: Maybe I should reply to Mr. Gen- 

14 try's question differently from what I did. We have pro- 

15 vided that it shall be presented within seven days. This 

lg is a different method from that now used, but once it is 

17 presented, he has a period of ten days in which to act on 

of 

1Q it. So he would have a total/seventeen days . The system 

19 begins to operate upon final passage. 

: - THE CHAIRMAN: A maximum period of seventeen 

21 days. It could be less. 



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■. JUDGE ADKINS: A maximum period of seventeen 

2 days. The law now provides he shall act within a certain 

number of days after presentation, without reference to 
^ final passage. We have tried to anchor it to final 

5 passage. Within seven days it has to be presented. If 
c it is presented within two days, as I think was Mrs. 
„ Freedlander 's point, he would then have twelve days from 
o final passage, but he would still have ten days after 
o presentation, but the presentation must be made within 

the seven-day period following final passage. His period 
•q of time for consideration is the same. 
22 DR. WINSLOW: The present Constitution says 

,, that the governor shall return the bill with his objections 
•,4 Does the word veto, as the committee is using it, mean 
exactly the same thing or may he return it without his 
objections? It seems to me very often the statement of v 
the governor's objections is a very useful thing for the 
Legislature to have, as well as for people who are con- 
cerned. 

JUDGE ADKINS: I would assume that there is no 
requirement in this language which requires him to state 



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1 his objections. Maybe that is a worthwhile suggestion. 

2 MR. POWER: As I recall, the committee's reason 

3 for this was that we felt certainly if the governor 

4 wants the legislature not to override the veto, he will 
g inform them either through a message or through informal 
g techniques of what he finds wrong with the bill. We 

7 thought perhaps the constitutional language was unneces- 

8 sary because this could be accomplished on an informal 

9 level without the constitutional provision. 

10 DR. WINSLOW: This would not apply to bills he 

11 has leftover after the Legislature adjourns because then 

12 he is not arguing with the Legislature, he is merely stat- 

13 ing his reasons for vetoing this. This is often very 

14 useful for the next session of the Legislature which might 

15 reconsider the bill. 

15 I found that students of government often find 

17 these statements of objections to this bill or that bill 

18 extremely useful in understanding what is going on. I 
an looking at it somewhat from the angle of the public 

20 and not just from the angle of the Legislature. I think 

21 it would be too bad not to have the governor state his 



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objections . 




2 


MR. CLAGETT: If the governor happens to be 




3 


on the way back from Europe and runs into a bad storm, 




4 


sets down in Bermuda, cannot get there on the 17th day, 




5 


what happens? 




6 


JUDGE ADKINS: I should suggest he arrange his 




7 


travel plans a little more expeditiously. 




8 


THE CHAIRMAN: Or designate the lieutenant 




9 


governor -- 




10 


JUDGE ADKINS: To act in his absence. 


1 


11 


DR. MICHENER: The comparable Federal provision 




12 


contains an unresolved point of constitutional law. You 




13 


resolved it here. I am curious to know if you meant to 




14 


do it this way. 




15 


JUDGE ADKINS: Probably not. 




16 


DR. MICHENER: You say the governor has so many 




17 


days to act. If the governor dies during the period of 




18 


time after presentation, the period runs as of the original 




19 


presentation from here, and the new governor will have 




20 


only the remaining time. 




21 


In the Federal Constitution, it refers to pre- 







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sentation to him, which ties it to the original presenta- 
tion* Here you say after presentation, which leaves it 
so the first presentation would cover. I assume this is 
deliberate. If the governor dies on the eighth day, 
the lieutenant governor takes over, he has only two days. 

THE CHAIRMAN: Doesn't this say presented to him 
in the third line? 

DR. MICHENER: No. 

MR. MINDEL: Presented to him. 

DR. MICHENER: Then he dies. It shall become 
law if the governor either signs or fails to veto it with- 
in ten days of presentation, not to him on the second 
phraseology. The Federal Constitution refers to him again, 
As I read it, if the governor dies, the new governor has 
only two or three days, whatever it may be, to act. 

JUDGE ADKINS: You flatter us when you say this 
was done by design. I don't think this question was con- 
sidered. 



visement? 



THE CHAIRMAN: Do you want to take it under ad- 



JUDGE ADKINS: I suppose so. 



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MR. DELIA: Could I ask a question of the com- 
mittee? What appeared to be the committee's opinion as 
to why the governor signed the bill so quickly after it 
was presented to him? Now the procedure is they sign 
bills about once during the middle or near the end of 
the session and thirty days after the end of the session. 

I am wondering about the hurry now, making these 
many times during the session. Many times the governor 
may be tied up with functions of State along with legis- 
lation. 

JUDGE ADKINS: One of the weaknesses in the pre- 
sent system is a governor could drag his feet in acting 
on legislation passed until the Legislature adjourned. 
We felt the General Assembly was entitled to have a prompt 
decision by the chief executive during the period of time 
it was in session, so it could, if it wanted to, exercise 
the override provisions while it was still in session. 

We have lengthened the time somewhat after the 
adjournment to forty- five days, which gives the governor 
ample time to consider the matter, but our thinking was 
that during the period of time when the Legislature is in 



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1 session, if bills were presented to him, he should act 

2 forthwith, in order to give the Legislature a chance to 

3 consider his action. That was our rationale of that 

4 point. 

5 THE CHAIRMAN: Any further question on this 

6 subsection? 

7 MR. SAYRE: With respect to this subsection, in 

8 regard to succession, if I could sort of just submit for 

9 the idea, so we can have it drafted, if the lieutenant 

10 governor or any other successor comes in after the bill has 

11 been presented to the governor, that that whole series 

12 here of what would have been available to the governor 

13 repeat itself for the successor. If that idea can be in- 

14 corporated, it shouldn't pose any problems. 

15 THE CHAIRMAN: I understand the committee is 

16 going to take this under advisement as to whether they think 

17 this is or is not advisable. Is that correct? 

18 JUDGE ADKINS: Yes. 

19 THE CHAIRMAN: Are there any further questions 
: or comments? If not, Section (c). 

JUDGE ADKINS: Passage over Veto . If the gover- 



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nor vetoes a bill, he shall return it to the General 
Assembly within ten days of presentation if the General 
Assembly is in session. Any bills that is returned by 
the governor shall be reconsidered by the General Assembly 
and if upon reconsideration, three-fifths (two-thirds) of 
all members of each house shall agree to pass the bill, 
it shall become law. 

You will note we have bracketed two- thirds as 
an alternate depending upon the decision of this group 
today. I think our feeling would be that three- fifths 
is probably sufficient though I am not sure our committee 
as such has acted on that matter. My own feeling is three- 
fifths in this instance would be sufficient. 

THE CHAIRMAN: Are there any comments or ques- 
tions other than on the two- thirds or three- fifths ? We 
will hold that question for the moment. 

MR. MINDEL: Perhaps we should substitute the 
word may instead of shall. Does the Legislature have to 
return the bill? They don't have to do anything, do they, 
Judge? 

JUDGE ADKINS: I am not sure I know the answer to 



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.. that. My recollection is if a bill is returned, it 
p automatically comes up on a motion to either sustain or 
override the veto. I think this is probably a wise pro- 



3 



m cedure to be sure it receives legislative attention. I 



5 



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see no objection to having it automatically reconsidered 
- on proper motion. 

„ MR. MINDEL: Is that the practice now? 

Q JUDGE ADKINS: I think it is the practice now. 

q The veto message is read across the reading desk, and 

it automatically comes up for a motion to sustain or over- 
^ ride. 

Tp MR. BARD: Judge, -did you take into considera- 

,,, tion this matter of returning the bill early in the next 
14 session of the same Legislature? 

JUDGE ADKINS: I am not sure I understand your 
question. We did consider the possibility or the advis- 
,„ ability of the present provision in the Constitution which 
,o provides that bills vetoed after adjournment shall b( 
, Q immediately returned to the next session for consideration, 

We considered it and rejected it. We felt that the bill, 
pn once vetoed, after the session adjourned, should be de- 



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1 ceased and that if the bill had sufficient power behind 

2 it, the bill should be reintroduced and reenacted. It 

3 was a matter of policy that the committee acted on quite 

4 early. 

5 DR. BARD: It is a change in the current pr ac- 
ts tice? 

7 JUDGE ADKINS : Yes , an amendment made in the 

8 late ' 50's, I think. 

9 DR. BARD: It was 1959. Previously he returned 

10 it under all circumstances, and I think at present he 

11 returns it only during the session of the four-year term. 

12 JUDGE ADKINS: That is right. 

13 DR. BARD: According to this, he would not return 

14 it under any circumstances. 

15 JUDGE ADKINS: That is right, if the Legislature 

16 has adjourned and he vetoes it, the bill has to be reintro- 

17 duced under our proposal. 

18 DR. BARD: It is a significant change. I think 
we ought to discuss it and see it in the light of this 

: amendment. I would like to ask the Judge where they made 
the change. 



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1 MR. POWER: What Dr. Bard is talking about, I 

2 think my response was perhaps to legislative abuse. 
5 The whole procedure of submitting the bill to the next 

4 legislative session was introduced by amendment and sub- 

5 sequently limited in 1959. The abuse was the governor 
g had a large degree of discretion about when to suffer a 

rj bill to be presented to him. He could, by not permitting 

q the bill to be presented to him, even though passed early 

9 in the legislative session, prevent -- well, he could 

10 pocket veto the bill after the Legislature adjourned 

11 and permanently preclude the Legislature from ever having 

12 an opportunity to override. 

13 In this section, since we give the Legislature 

14 a technique whereby they can, by passing a bill early in 

15 the legislative session, guarantee the right to override, 
15 we think that the return to the next legislative session 
17 is no longer necessary. 

1Q DR. BARD: How about those bills that pass in 

19 the last days of the session? 

20 MR* POWER: In the next legislative session, if p 

21 the Legislature is concerned enough, they can pass them 



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1 rly in the session and if they are again vetoed, they 

2 can override the veto and the bill will still take effect. 
, THE CHAIRMAN: Are there any other question? 

4 other than the question in regard to the two- thirds or 

three- fifths? 
6 DR. bURDE'JTE: 1 should offhand prefer to i 

m in (c) some type of language which would provide three- 

q fifths or two- thirds of all members of each house voting 

g by Yeas and Nays to be recorded jn the journal. I think 
jq - could be construed to mean if somebody 

2i brought a letter from home that be was for it, he would 

12 be counted la the <. ent . 

t» The present Constitution expressly requires a 

24 vote by the Yeas and Nays to be recorded in the journal. 
While I believe Dr. Bard's committee has done the same 
thing, J ' in not sure that the language in thai rt 

27 Ktttcli v f - I adopted gat over into this one. 

r IHZ CHAIRMAN: Judge Adkins , would you object if 

2g t\ - on Style made tl I -iguage of this conform 

;.' the . the passage of the bill? 

J,- JUDO 1 should be very happy to have 



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1 the c ommittee on Style make such a change. It seems to 

2 me Section 15 of the report we considered before supper 

3 controls that, however. I would assume that language 

4 was broad enough. 

5 DR. BURDETTE: I am afraid not. Passage over 

6 a veto, I think is different. 

7 MR. SAYRE: In the Legislative Department it . 

8 would seem to me all votes in final passage should have 

i i 

9 Yeas and Nays recorded, and that would encompass this 

10 problem. Any final vote, including a final vote for re- 

11 consideration. 

12 ; THE CHAIRMAN: Did you follow that, Dr. Bard? 

13 DR. BARD: Not fully. 

14 THE CHAIRMAN: The suggestion Mr. Sayre made 

15 was that in the article dealing with the Legislative De- 

16 partment the provision be that all votes on final action 

17 be recorded Yeas and Nays, not just final passage of the 

18 bill. 

19 DR. BURDETTE: Including reconsideration after 

20 the veto or some such language. 

21 THE CHAIRMAN: Any further question or comment on 



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: 


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this question other than the three-fifths, two-thirds' 


■ - 


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question? If not, the committee recommends that the 




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proportionate vote for passage over veto be three-fifths. 




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Does anybody care to submit a different proportion? If 




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not, it is three- fifths . I'm sorry. Mr. Martineau. 




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MR. MARTINEAU: To get the matter on the floor, 




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I think it should be two- thirds, and I so move. 




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DR. BARD: Second. 




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MR. BROOKS: Could I speak on this question? 


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THE CHAIRMAN: Mr. Brooks. 




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MR. BROOKS: I think there is a great deal more 




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to be said in favor of uniformity of the extraordinary 


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vote provision in the Constitution than there is to draw- 




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ing a distinction between three- fifths and two- thirds. 




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I don't have any preference between the two, 




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but I think one of the objectives of this Commission should 




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be to write a simplified and easily understandable Con- 




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stitution by the majority of the people of the State as 




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is possible. I think one of these principles would be 




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to have exceptional votes and things of that kind that 




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people can remember. As a matter of fact, all of the 






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, recommendations to the 1876 Constitution were uniformly 
2 presented as two- thirds. The three- fifths that appear 

in the Constitution all crept in through individual argu- 
4 ments in the convention itself and each was a compromise. 
c I think that is likely to occur, unfortunately, 

g at any convention held, but I think it would be well for 
„ the Commission itself to begin with a principle of what 

o should be an extraordinary vote. The real fundamental 
q doctrine is that all the votes ought to be pure majority 

of a representative body representing the people. But 
Y\ only in rare situations should an exceptional vote be 

12 required. I think then, if you follow that doctrine 

■. 3 when you have an extraordinary provision, some other vote 
■xa than a majority ought to be required, but that there is 

little distinction between rationalizing the difference 
between three- fifths in one case, two- thirds in another 
17 and trying to rank the importance of the various extraordi- 
■ja nary votes requiring more than a majority. 

But I am certain, and we have in our record from 
the legislative sessions, that it is indicated that it 
is easier to remember a single exceptional vote even by 



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■^ legislators who are supposedly well versed in the rules 

2 of the law-making process as to what votes are required 

2 for particular different actions, that if we just have a 

4 standard one, most people can remember that without hav- 
g ing to look up each situation. 

5 THE CHAIRMAN: Any further discussion on this 
7 motion? 

g MR. HOFF: I agree thoroughly with Mr. Brooks. 

v 

9 I think uniformity in this instance would be a great help 

10 to everybody, both legislators and the public. 

11 MR. MARTINEAU: Without getting into the debate 

12 whether there should be something uniform in here, it 

13 seems to me of all the areas in which an extraordinary 

14 vote is required, the one of passage over a veto should 

15 be the one that is two- thirds. I think it was mentioned 
X6 before that you should have a higher percentage, if you 

17 have a higher percentage in any case, in those cases where 

18 you are reversing the action of someone else. That is 

19 the case here. I really think that if in no other, this 

20 should be the one instance where a two- thirds vote ought 

21 to be required because it is the classic case where one 



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1 branch of the Government says something is bad for the 

2 people and another branch of the Government is saying some- 

3 thing is good for the people. One branch is saying it 

4 is good for the people, that branch should be required 

5 to have a great deal of unanimity, if not complete unani- 
g mity. I think we should have a two- thirds vote. 

7 MR. MILLER: My only comment is I would be in 

g favor of two-thirds all the way along the line if it were 

9 two- thirds of those present and voting, but if we are 

10 going to make it a poll of the entire eligible membership, 

11 I think three- fifths is sufficient. I think what Mr. 

12 Brooks and Senator Hoff have said is very important. I 

13 think you don't want to have people on the floor of the 

14 Legislature having to rush to look at the Constitution 

15 to know what they want to do on a particular bill. 

15 MR. SAYRE: The way I would like to envisage 

1Y the voting composition is 51 per cent of each house and 

18 51 per cent of both houses in joint session and then the 

19 second would be three- fifths of each house and then three- 
go fifths of both houses in joint session. I don't think we 
21 should have any more than those combinations. It is my 



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feeling. 

DR. BARD: I was going to say that the two- 
thirds, although legal, would be 96 out of 142. If it 
is a worthy cause, we ought to be able to get 96. I, 
too, believe that what happens quite often under the pre- 
sent circumstances is that they are not too sure, and the 
people who are working one way or another are often dis- 
illusioned about the whofe thing after they think they have 
enough because they don't understand which fraction is in 
use. 

THE CHAIRMAN: Any further comment? Are you 
ready for the question? 

MRS. FREEDLANDER: Question. 

THE CHAIRMAN: The question arises on Mr. 
Martineau's motion to require a two- thirds vote of all 
members, all elected members, to override a veto. Those 
in favor please signify by a show of hands. Those opposed, 





18 


Nine to nine. I would say the motion failed. 






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MR. CASE: I didn't vote. 






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MR. MARTINEAU: Could we have a recount 


and 




21 


give those who didn't vote a chance to vote? 




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1 THE CHAIRMAN: The motion is lost. That is 

2 if we are going to make progress. 

3 MR. BROOKS: What was the motion? 

4 THE CHAIRMAN: To substitute two- thirds instead 

5 of three- fifths . 

6 DR. BURDETTE: What is it? 

7 THE CHAIRMAN: Three- fifths . 

8 MR. CLAGETT: We supported the vote on non- 

9 uniformity then. 

10 MRS. BOTHE: We are consistent. 

11 MRS. FREEDLANDER: A point of information. 

12 When Judge Adkins made his report, he did not state that 

13 the committee was in favor of either one. He said it 

14 would be left up to the Commission. I wondered -- 

15 THE CHAIRMAN: I understood him to say the com- 

16 mittee supported three- fifths . Maybe I misunderstood him. 

17 MR. CLAGETT: I believe he said the committee 

18 had not acted on it. It was his personal -- 

19 THE CHAIRMAN: Let's ask him. 

20 JUDGE ADKINS: The committee votes three to two 
in favor of three-fifths. I assume it is the recommenda- 



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tion that it be three- fifths . I must say it is not a 
clear decision on the part of the committee. I would hate 
to see it decided by a tie vote. 

THE CHAIRMAN: It is an important matter and 
involves a principle. Am I correct in my belief that 
the only provision in the legislative article which em- 
braces this principle of extraordinary vote is the one 
on extending the session in which we agreed on the two- 
thirds vote? 

DR. BARD: So far we voted two- thirds on every- 
thing. 

THE CHAIRMAN: You say everything we voted upon, 
but the only thing we voted upon thus far was extension. 

DR. BARD: Put it that way. 

JUDGE ADKINS: Disability. 

MR. SAYRE: Expulsion. 

THE CHAIRMAN: Two- thirds. Extending the session 
is two- thirds. Was there anything else we have actually 
taken a vote on? 

JUDGE ADKINS: The disability provision, no 
specific vote, but it was inherent in the recommendation. 



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It was recommended that it be two- thirds. 

MR. MARTINEAU: Impeachment. 

MRS. FREEDLANDER: Impeachment was two- thirds. 

MRS. BOTHE: On that subject I sympathize with 
the uniformity arguments, that if they aren't overridden 
by discrepancy of importance of various issues, I would 
be willing to reverse my vote on the last motion, but I 
suggest perhaps we go through the whole Constitution and 
consider these various places where the three- fifths , 
two- thirds comes up and then reconsider after we found out 
how many instances of discrepancy there are. 

If there are only one or two, maybe we will re- 
verse the uniformity. If there are not, stick with our 
views on the particular issue. 

THE CHAIRMAN: That might be worthwhile, but we 
have to arrange to have some scorekeeping. 

DR. JENKINS: I was called out at this critical 
moment, I'm sorry. I would have voted for three- fifths . 

THE CHAIRMAN: The action is the same. 

MR. CLAGETT: What did we provide with respect 
to referendum? Was that three- fifths or two- thirds? 



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THE CHAIRMAN: Three- fifths . It was not -- 






2 


MR. CLAGETT: At Easton. We have gone two- 






3 


thirds on expulsion, impeachment, disability, and the 






4 


only three remaining, veto, referendum -- 






5 


THE CHAIRMAN: . Constitutional amendments, yes. 






6 


MR. CLAGETT: Nobody has considered consti- 






7 


tutional amendments . 






8 


THE CHAIRMAN: The committee chairman said she 






9 


didn't want to yet because the committee hadn't considered 






10 


it. Let's go ahead, with the understanding that this 






11 


whole question of the proper ratio on extraordinary votes 






12 


could be considered after we' have considered the details. 






13 


JUDGE ADKINS: Supplementary Appropriation Bills. 






14 


The governor may strike out or reduce items in supple- 






15 


mentary appropriation bills and the procedure in such 






16 


cases shall be the same as in the case of the disapproval 






17 


J of an entire bill by the governor. 






18 


THE CHAIRMAN: Any question or comment? 






19 


MR. MILLER: I would like to understand a little 






20 


better. Is that approving a line veto? 






21 


JUDGE ADKINS: Yes, that's a line item veto 








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in supplementary appropriation bills. 

MR. MILLER: It doesn't knock out the whole bill? 

JUDGE ADKINS: It may or may not, but he can 
strike out or reduce items in supplementary appropria- 
tion bills. That would be a line item consideration in 
supplementary appropriation bills only. Of course, the 
original budget bill would be his own product. 

MR. CLAGETT: How would this affect a supple- 
mentary appropriation bill for the benefit of the judi- 
ciary? Would it apply here as well? As I recall, the 
budget for the judiciary is not subject to being reduced. 

THE CHAIRMAN: That hasn't been acted upon yet. 
That would be one of the provisions in the language 
drafted, but it hasn't been acted upon by the Commission. 

MR. CLAGETT: My question of the chairman here 
is whether or not this would also apply with respect to 
supplemental appropriation bills recommended by the Chief 
Justice or the judiciary in general? 

MR. MARTINEAU: Could I answer that? 

JUDGE ADKINS: I can't answer that because I am 
not sure what the final language in the judiciary article 



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will be. 

In the absence of something specific in the 
judiciary article reserving the pov;er to the judiciary 
to make its own budget, I would say this would apply. 

THE CHAIRMAN: Heretofore the provision in the 
judiciary article, the proposed provision is referred 
jointly to the Committee on the Judiciary and the Finance 
Committee, and we haven't heard from them yet. 

MR. MARTINEAU: The problem doesn't arise even 
under our proposal because under our proposal the judi- 
ciary budget is to be submitted to the governor and in- 
cluded in his budget. There is no question of supplemental 
appropriations. That is part of the governor's budget. 

MR. CASE: With all due respect to Mr. Mar- 
tineau, and supporting Mr. Clagett, it could happen in 
that a supplemental appropriation bill is any bill con- 
jured up by a member of the Legislature after the budget 
bill has been passed, if he can find the necessary revenue 
sources. So that a supplemental appropriation bill for 
the judiciary conceivably could originate on the floor of 
either house. 



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That being true, it is perfectly proper in my 
g judgment and, I think, the judgment of our committee that 

it be subject to executive veto. So we think this is 
. proper. I, personally, think this is a proper provision. 

MR. MARTINEAU: To answer that, I think the 
- position of our committee is that we agree that should 
„ be subject to veto. 

8 THE CHAIRMAN: Then there is no dispute. 

Q MR. MARTINEAU: No, the question Mr. Clagett 

,q was raising was about the budget as prepared by the 
•Q judiciary department. 



12 

13 point. 



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MR. CASE: No, it. was not. That is exactly the 



MR. MARTINEAU: I misunderstood. 

MR. CLAGETT: It is clarified. I am satisfied. 

THE CHAIRMAN: Is there any further discussion? 
If not -- 

JUDGE ADKINS: That completes our report, Mr. 
Chairman. 

THE CHAIRMAN: Now, we are going to proceed to 
2i a consideration of The Fourth Report of the Committee on 



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Miscellaneous Provisions. That is the report which you 
had for quite some time. We will deal only with 
Militia Provisions beginning on page 11. 

While you are looking for that, I would like 
to ask your indulgence, particularly those members of 
the Commission with legislative experience, to go back 
to the report of the Committee on the Legislative Depart- 
ment because I think that we may have inadvertently done 
something we don't want to do. Do we not presently in 
the Legislature have a system under which third reader 
bills can be amended on final passage by suspension of 
rules without the bill being reprinted? 

MR. CASE: It has to be printed. 

THE CHAIRMAN: Can't you make an amendment on 
the third reader bill and by suspension of rules move 
on to final passage without reprinting it? 

MR. CASE: I always thought they had to print 
them, had to go back up, have the amendment printed on. 

MR. DELLA: Third reader bill cannot be amended 
in the house it originated from, but a third reader bill 
can be amended in the other house. 



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THE CHAIRMAN: The point is: Can it be amended 




2 


without being reprinted? 




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MR. DELIA: No, it has to be reprinted. If it 




4 


comes in the same house, they want to amend a third reader 




5 


bill, it is referred back to second reader, open for 




6 


amendments, amendments attached to it, and reprinted again, 




7 


it goes to the other house, they can attach amendments 




8 


on without reprinting. 




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THE CHAIRMAN: That's what I was asking you. 




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MR. DELLA: That's in the second house, though. 


> 


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THE CHAIRMAN: But then it is not reprinted be- 




12 


fore it is passed finally by the second house? 




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MR. DELLA: Not necessarily. It would be printed 




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before the governor signs it. 




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MR. SYKES: It wouldn't be passed finally by 




16 


the second house, if the second house makes an amendment, 




17 


it has to go back to conference, has to be repassed by 




18 


the first house concurring in the amendment. 




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THE CHAIRMAN: No, it goes back to the other 




20 


house and if the other house concurs in the amendments, 




21 


it doesn't require second action by the amending house. 






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In other words, if a house bill goes through the House 
and goes to the Senate, it can be amended on third reader 
in the Senate. The amendment can be typewritten on and 
it can go back to the House and the House concurs in the 
amendments without the bill being reprinted. It is then 
engrossed before it is presented to the governor. Isn't 
that the procedure? 

MR. CASE: I thought they had to be reprinted, 
an enrolled bill. 

THE CHAIRMAN: Let me suggest, instead of taking 
time to debate, that can be the Committee on Legislative 
Department who will consider that, in conjunction with the 
amendment that was suggested on the floor to one of the 
sections about printing on final passage. 

MR. CASE: Mr. Chairman, despite that fact, 
I think no matter what the practice is now, I think that 
before a bill is finally passed, it ought to be reprinted 
so that everybody can read the amendmants that have been 
laid on it. 

THE CHAIRMAN: I am not suggesting the vote be 
changed, but if what we have done here is a change in the 



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existing practice, our report should indicate it. 


" 


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MR. CASE: I agree with that. 




3 


THE CHAIRMAN: I suggest the Legislative Com- 




4 


mittee find out and put it in the report. 




5 


MR. CASE: I think the judgment of the Com- 




6 


mission on that is sound. 




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MR. BROOKS: We checked that. We know it is. 




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THE CHAIRMAN: Mrs. Bothe. 




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MRS. BOTHE: This report has been in the hands 




10 


of the Commission so long that I am just reviewing it 


' 


11 


myself for the first time in three months. Starting on 




12 


page 11 of the report labeled Fourth Report of the Com- 


' 


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mittee on Miscellaneous Provisions dealing with the mili- 


1 

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tia. There is a separate section of the present Consti- 


1 

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15 


tution dealing with the militia which we have quoted on 




16 


page 11. 




17 


There are also some other parts of the Constitu- 




18 


tion which come within the purview of the militia article, 




19 


particularly Article 28 through Article 32 in the Declara- 




20 


tion of Rights. On the Declaration of Rights, the committer 


5 


21 


has referred consideration of them to us. We have incor- 






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^ porated them in our recommendations for sections on 

2 the militia. 

2 Also, without consultation, I believe, with the 

4 Committee on Executive, we have considered Section 8 

5 of Article 2, which deals with the powers of the governor 
g with respect to the militia, and have incorporated certain 
7 recommendations from the powers granted presently in 

Section 8 of Article 2. 
9 We propose a section on the militia without 

10 comment as to whether it should be separately enumerated 

H or placed in a general government section which would read 

12 as follows: 

13 The General Assembly may provide for a militia. 

14 The governor shall be its commander-in-chief, and shall 
^5 appoint its officers. The governor may call out the 

•^g . militia to repel invasions, suppress insurrections, and 

17 enforce the execution of the laws. The military power 

1Q of the State shall be and remain subject to civil control 

19 at all times, and only persons in active military service 

20 shall be subject to trial by a military court. 

21 That one section is proposed to cover those parts 



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of the four sections of the Declaration of Rights and 
of the present three sections of the militia article, 
it would be all that is necessary in a new Constitution 
to take care of the militia. 

Upon investigating other State Constitutions, 
Mrs. Freedlander reviewed, I think, forty-nine of them 
and we found that all of them carried some provision 
regarding the militia. Most of them provide the governor 
shall be the commander-in-chief. Most of them provide 
that no person shall be subject to court martial. 

We have had the benefit of the views of Generals 
Gels ton, Reckord, and also General Ogletree, the three 
heads of the National Guard, General Gelston just having 
gone back to work in that capacity. Our committee report 
states that this proposed section was presented to them 
and that all of them concurred that it was appropriate 
and covered the necessary fields. 

I might state since the report was submitted 
to the Commission, we have received some communications 
from Generals Ogletree and Reckord suggesting some expanded 
language which the committee has not seen fit to include. 



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As you will note, we do not recommend that 
there be any constitutional office either of adjutant 
general or of assistant adjutant general or any particular 
officer. We felt this was one of a number of consti- 
tutional offices under the present Constitution that 
would be eliminated. 

We felt that the barebones provision contained 
in the proposed section would most adequately cover the 
existence of the militia. 

One area of concern which we had in going 
through the provisions now on the Declaration of Rights 
regarding the militia was that contained in Article 32 
quoted at the top of page 12, that no person except 
regular soldiers, marines, and mariners in the service 
of this State, or militia, when in actual service , ought, 
in any case, to be subject to, or punishable by martial 
law. 

We were somewhat concerned as to whether our 
proposed provision that only persons in active military 
service shall be subject to trial by military court would 
cover what is now encompassed by Section 32, and we asked 



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a research assistant to make, and he did make a very 
extensive report on that subject, coming up with the con- 
clusion that what was meant by Article 32 was not that 
there could be no martial law as we understand it in 
common nomenclature. In other. words, Section 32 did 
not preclude the governor's imposing a military regime 
on an area of the State under emergency conditions, but 
that it only was intended to preclude trial of civilians 
by military court. So that we feel that all of the 
sections that are in the present Declaration of Rights 
are either adequately covered by our proposal or are 
unnecessary. 

Of course, Article 28 is nothing but a statement 
of principle which General Reckord, I believe, thinks 
should remain in the Constitution, but the committee felt 
was unnecessary. 

Article 29 again is merely a statement of prin- 
ciple and has no place in the type of Constitution we are 
aiming for . 

Article 30. The sense of Article 30 is included 
in our proposal with the statement that the military power 



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of the State shall be and remain subject to civil control 
at all times. 

Article 31 gave us some pause for discussion 
with the Generals. That is the section stating that the 
soldier shall not be quartered in any house, which is 
contained in a number of State Constitutions. But we felt 
that the danger needing to be protected against here was 
so remote that it didn't need constitutional inclusion, 
and we don't recommend that any such principle be incor- 
porated in the new Constitution. 

I have already discussed Article 32. 

As I stated, we make no recommendation as to 
where the militia section belongs. The committee has been 
giving some consideration to a recommendation that there 
be a general government article that would be a catch-all 
for a number of provisions such as this one. 

THE CHAIRMAN: Are there any questions? 

MR. BOND: I might point out to the committee, 
I don't disagree with anything Mrs. Bothe said, but the 
last clause -- and only persons in active military service 
shall be subject to trial by military court -- that is- a 



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1 direct conflict with the Uniform Code of Military Justice, 

g an act of Congress, and is also in conflict with the 
line of Supreme Court cases which, while restrictive, 

^ still say under certain circumstances personnel who have 

. been released from active duty are subject to military 

c tribunals . 

7 MRS. BOTHE: We think we are referring to the 

q military discipline of the State's militia. We can't 

g preclude trial of people by the Federal military arm, I 

2Q am afraid. 
H MR. MILLER: Mr. Chairman, I am a little doubt- 

12 ful about the words active military service. I think this 

23 is a very good section, but there is a certain distinction 

-14 in military outfits as to when a person is on active duty. 

, 5 It usually involves a pay status. 

-.- As I read this, if you construe it narrowly, 

17 there would be no possibility for disciplinary action in 



18 



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certain instances which are a very important part of, you 



ig might say, civilian recruit training of military offenses 



that occur during a time when the person in question might 



2i be in uniform but wasn't drawing pay. 



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If it is possible to clarify that so that 
military discipline would continue without some technical 
word, I think it would be desirable. 

MRS. BOTHE: We discussed this, at least 
peripherally, with the Generals, and it was their feeling 
that this language would not conflict with the militia 
article. We had no intention that only those who were 
being paid were people definable as active in military 
service. 

On the contrary, of course, the meaning is 
people who at the particular moment that these plans 
are imposed are in the State service, whether being 
paid or whether they are drafted or under whatever cir- 
cumstances they happen to be. 

I might comment under existing code provisions 
we were told that the most stringent penalty that could 
be imposed was something like ten days in the jail. The 
powers are not very extensive under the existing code. 
They could be increased by the Legislature, of course. 

MR. MILLER: It is not the idea of heavy of- 
fenses that would be handled in the State Courts. But as 



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I read this, if any soldier was ordered to report to the 
Armory on such an occasion, until he reported he wouldn't 
be subject to military discipline. 

MRS. BOTHE: I think that is perhaps stretching 
a point, because when he is ordered into service, if he 
is within the purview of a person subject to military 
discipline, he is told to report, and if he fails to do so, 
he is in. 

MR. MILLER: If he is only supposed to be there . 
two hours in the evening, would you consider him still 
on active service? 

MRS. BOTHE: Yes.. As a matter of fact, an 
example was given to us that the most frequent kind of 
discipline imposed appears to be for Reserve people who 
don' t show up. 

MR. MILLER: That is right. 

MRS. BOTHE: They are meted out fines ordinarily, 
but these are the people whom we were told could be dis- 
ciplined under such provision, and they are the ones that 
don't come that night. 

MR. BOND: I might say this. As a matter of 



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1 history, I am a legal specialist in the Naval Reserve, 

2 just retired, I participated in the court martials of 

5 Reservists not on active duty, but who have been on train- 
4. ing duty. Sometimes it is very important that those people 
g be subject to minor military courts and be subject to 

6 military judgment. 

7 I vzould again say I think this language is ex- 
9 tremely broad, but I do think it is in conflict with the 
9 Uniform Code, which specifically applies to Reservists 

10 on training duty and National Guardsmen on training duty. 

11 I also again see it is in conflict with the 

12 line of Supreme Court decisions on people who have been 

13 released from active military service and who have been 

14 convicted of crimes, tried by military tribunals and con- 

15 victed of crimes committed while on active duty. 

15 THE CHAIRMAN: Mrs. Bothe, if you change the 

17 language "in active military service" to "actually in 

18 military service," wouldn't it serve your purpose and meet 

19 the objection? 

: MRS. BOTHE: Yes, I was thinking perhaps that 

: the change might be to have it refer to a military court 



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of the State because I believe a lot of Mr. Bond's com- 
ment pertains to military discipline on a Federal basis. 
Of course, we would have no control over that. 

THE CHAIRMAN: I was thinking also of Mr. 
Miller's comment. Instead of saying "in active military 
service," if you said "actually in military service" -- 

MRS. BOTHE: If Mr. Miller feels it would suit 
the purpose, I think that is just as ambiguous and perhaps 
more so than active. 

MR. MILLER: I would suggest if you just left 
out the word active and just said persons in military ser- 
vice -- 

MRS. BOTHE: That, we wouldn't want to accept 
for the reason a number of people, as you know, are in 
the National Guard or in the militia who are only inci- 
dentally so. We would want to make it clear they are only 
subject to the military courts while in active actual ser- 
vice. If they go through a red light driving on a date 
on Saturday night -- 

MR. MILLER: Perhaps we are not in agreement on 
what you mean by actual military service. Would you con- 



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sider a person who had enlisted or was commissioned 

in the National Guard not on military service unless he 

had reported for duty? 

MRS. BOTHE: Or was called for. duty. I will 
give an example of what I think the committee means. 
Suppose an individual is driving a jeep while on his 
two hour a night Reserve duty and he drives recklessly 
and smashes it up. He could be subjected to military 
discipline. 

However, if the same individual the next night 
is out with his girl-friend and driving his own automo- 
bile recklessly, that would be subject only to civil con- 
trol. 

MR. MILLER: Of course, actually in those cases, 
there has never been much trouble, but the. military courts' 
always were eager to have the civil courts take those 
kinds of cases . 

Suppose a soldier in the Maryland National Guard, 
against orders puts on his uniform and goes out and does 
things that are contrary to the good of the service. 
Would you tie the hands of the military courts from taking ' 



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ary action? 
MRS. BOTHE: 


If he were doing it purel 


y as a 





civilian, yes. 

THE CHAIRMAN: Mr. Miller, so that we have the 
matter before us properly, do you v?ant to move that the 
word active be deleted? 

MR. MILLER: I would like to move that. I 
would be glad to have another word in there, but I think 
active has a different connotation to a great many people. 

THE CHAIRMAN: Is there a second to that motion? 

DR. BARD: I second it, if I can amend it. 

THE CHAIRMAN: Let's get a second. 

DR. BARD: I will second it and offer an amend- 
ment. 

MRS. FREEDLANDER: Mr. Chairman, this is an 
article that has some technical aspects to it that we 
learned on the job, in listening to Generals Reckord, 
Ogletree and Gelston. All of them seemed to be agreed 
that the Military Code of Maryland has stood them in good 
stead for over fifty years, and they are perfectly satis- 
fied with it. They didn't want too much in the Constitu- 



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tion that would jeopardize their bargaining and lever- 
age V7ith the Legislature, so to speak. 

They were for simplicity. When asked pointed- 
ly, they might even have agreed to not having an Article 

they are 
1, The Militia, that's how satisfied/with the Military 

Code of Maryland. 

It was in consultation with them that we re- 
solved this. Furthermore, much of what pertains to the 
National Guard today comes from the Federal Government, 
they said. That legislation takes precedence over anything 
we would state. I think we have to keep this in mind. 

DR. BARD: I was going to suggest that it read 
military service shall be subject to trial for military 
infractions. That would avoid the problem that Mrs. Bothe 
raised where one is not involved in a military infraction, 
this violation of the speeding law was not a military 
infraction, and perhaps takes care of -- 

MRS. BOTHE: He breaks up the jeep. 

DR. BARD: -- perhaps what Congressman Miller 
talked about. 

MR. CLAGETT: I still don't think we have touch- 



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ed upon the infractions that may be committed by National 

£ Guard Air Force personnel. You may be on a military 

*. flight from Washington to Miami and then decide to fly 

4 on down to New Orleans because you've got a good friend 

r down there. It would be outside the scope of any of 

6 the suggestions made at the present time. That can be 

7 carried to the plane, and you are on your way into town, 

8 something turns up, I think that actually neither General 

9 Gels ton nor General Reckord nor any of that group are 

10 knowledgeable enough insofar as Air Force activities are 

11 concerned to pass on that question. 

12 We have had a number of instances involving 

13 National Guard personnel where disciplinary action has 

14 been taken notwithstanding the fact they were neither in 

15 the military service nor on active duty at the time of 

16 the infraction. 

17 MRS. BOTHE: Was this action taken under State 

18- law? 

19 MR. CLAGETT: Under State law, taken under 

20 j military law, summary court martial. 

21 I MR. SYKES: Mr. Chairman, I think we have a ready 



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i made solution here in Article 32 of the Declaration 

7 of Rights as it exists today. The State Code of Mili- 
tary Justice says --it apparently functions to every- 

< body's satisfaction under the existing language, which 

5 is that militia when in actual service can be put under 
military law. 

The article now reads that no person except 

8 regular soldiers, marines and mariners in the service of 

9 the State or militia when in actual service ought in any 

10 case to be subject to or punishable by martial law. 

11 I don't suppose there are today any regular 

12 soldiers, marines, and mariners in the service of the 

13 State because the Federal Government has exclusive juris- 

14 diction so far as armies are concerned. But the militia 

15 would be the ones who would be subject to courts of the 

16 State, and I would think that we could adapt the language 

17 when in actual service. 

18 I would propose, therefore, an amendment to the 

19 last part of the committee's proposal which would read: 

20 And only members of the militia when in actual service 

21 shall be subject to trial by military court of this State. 



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So as to make perfectly clear we are talking about only 
the State. 

THE CHAIRMAN: V/ould you accept that, Mr. Miller? 

MR. MILLER: I am afraid that still wouldn't 
cover the point I am concerned about, which is to deprive 
the National Guard officers of their disciplinary powers. 
This isn't in connection with major crimes that I am con- 
cerned about. 

A member of the military service behaves in a 
way that brings discredit upon the military service, 
whether on active service or not, there ought to be op- 
portunities for disciplinary action to be taken against 
him. 

MR. SYKES: Could I speak to that a moment? 
Maybe I can persuade the congressman to go ahead. 

The theory of the suggested amendment is that 
apparently under the present language of the Declaration 
of Rights the State Military Department has had precisely 
the power that Congressman Miller is afraid of jeopardizing 
I would think if we adopt the language, there would be 
little doubt that our intention would be to continue 



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the present practice and to keep on with all of the 
practical interpretation of this language. That's the 
great benefit of adopting in precise terms language 
which has been established so long. I think by doing 
this we would preserve the advantage of the practice that 
you are worried about. 

THE CHAIRMAN: Are you persuaded, Mr. Miller? 

MR. MILLER: I am moved. I am not entirely per- 
suaded yet. 

MRS. BOTHE: If I may, I would like to poll the 
one member of the committee who isn't within the rump 
session here as to whether she would accept that language 
proposed by- Mr. Sykes. I think the rest of the committee 
would. 

MRS. FREEDLANDER: Yes, I would, Madam Chairman. 

MRS. BOTHE: Then we would substitute that 
language for the suggested language. 

THE CHAIRMAN: I don't think we can right now 



19 


because 


we have 


Mr. Miller's motion which we will have to 


20 


dispose 


of. Do 


you want either Mr. Sykes or you 


21 


move Mr 


, Sykes' 


language as an amendment to Mr. Miller's 








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motion? 

MR. SYKES: I will so move and ask Mr. Miller 
if he accepts it. If not, I hope it will be seconded. 

MR. MILLER: I don't want to interfere with 
parliamentary procedure, but I would like to hear from 
Mr. Bond because I think he is probably more up on mili- 
tary law at the moment than most of us. 

THE CHAIRMAN: Let's get the procedure in order. 
Will anybody second Mr. Sykes ' motion? 

MR. GENTRY: Second. 

THE CHAIRMAN: Discussion on the amendment. 

MR. BOND: I agree that Mr. Sykes' language is 
all right with one exception. Article 32 says punishable 
by military law. His proposed new language says subject 
to trial by military court. There is a great difference 
between prohibiting trial by military court and saying 
subject to martial lav?. 

You can have a military court act when martial 
law is not in effect. Therefore, I say the word military 
court should be deleted, we should take more language from 
Article 32. With that change, I am agreeable that there 



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is no conflict with Federal law and Federal cases. 

THE CHAIRMAN: I am not sure I follow your 
suggestion. Is that, that instead of the words trial 
by military court of this State you would substitute 
punishable by martial law? 

MR. BOND: Subject to punishable by martial law, 
yes, sir. 

THE CHAIRMAN: Do you accept the change, Mr. 
Sykes? 

MR. SYKES: I guess I am stuck. That is more 
Article 32 than I even started with. 

THE CHAIRMAN: I don't know that you are stuck. 
It is a simple question to accept it. 

MRS. BOTHE: May we clarify something for Mr. 
Sykes before he makes up his mind? 

THE CHAIRMAN: Go ahead. 

MRS. BOTHE: This was the subject of this rather 
weighty memorandum by our athletic research director. The 
reason we very deliberately avoided use of the word martial 
law as a result of his research is because what is common- 
ly thought to be martial law is, as he found, the popular 



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term is military rule over civilian community in time 
of domestic disorder, that is what people think of as 
martial law. 

It actually is not martial law, but because of 
confusion in the public mind we felt we should use the 
word military court, which would not engender any of that 
confusion in the future. It was a\ery deliberate depart- 
ure from language in Article 32. 

THE CHAIRMAN: Mr. Sykes , with that explanation, 
do you accept or not accept the amendment? 

MR. SYKES: I accept the amendment. 

MR. CASE: Mr. Chairman, I am glad nobody is 
confused here except me, because I am hopelessly confused. 
I would like to know from somebody, some military experts 
around the table, what is the difference in substance 
between trial by military court and a trial by or punish- 
able under martial law. 

THE CHAIRMAN: Mrs. Bothe just stated, as I 
understood it, they are the same. 

MR. CASE: Mr. Bond says they are not the same. 

MRS. BOTHE: I think I will try to straighten 



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your confusion out. We had a great deal of it, in fact, 
the generals themselves were uncertain as to what was 
meant . 

MR. CASE: They are confused, too. 

MRS-. BOTHE: Some of them thought they were 
capable of exercising controls over civilians in times 
when the governor declared martial law. Others thought 
the governor could declare martial lav/. 

The research developed that martial law was 
military law. However, we sought to avoid this confusion 
for the future by referring to what was actually meant, 
which was military lav?. That is the disciplinary control 
of the military over the military. 

MR. CASE: You say though trial by military 
court . 

MRS. BOTHE: Right. 

MR. CASE: That to me has a different connotation; 
than being subject to or punishable by martial law. Just 
the plain English of it seems to indicate two different 
thoughts. Are you really saying they mean exactly the 
same thing? 



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1 MRS. BOTHE: Yes, we are. We didn't know 

2 whether they did either, and this report unfortunately 

3 is -too long to incorporate in entirety in our report; 

4 but the whole history of what was meant by Article 32 

5 was traced through the debates in the convention and the 

6 common law at the time, and the powers exercised and 

7 exercisable by the governor pursuant to his power to de- 

8 clare martial law, and that is what the conclusion was , 

9 that what was meant by Article 32 was military court. 

10 THE CHAIRMAN: Mr. Bond. 

11 MR. BOND: I think I can clarify Mr. Case's 

12 point. 

13 MR. CASE: That's the second attempt. 

14 MR. BOND: First, in the National Guard and 

15 Armed Forces their company punishments, non judicial 

15 punishments, for offenses meted out by superiors in a cer- 

17 tain area of command, that is not a military court. 

18 There are many more occurrences of that type of discipline 

19 than there are of court martials. There is also a very 

20 minor type of court martial which has not been typified 

21 or typed as a military court which is called a summary 



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court martial, a one-man judicial proceeding with a very 
small record kept. 

Above that are two large court martials. One 
is a seven-man, one a twelve-man, your general and your 
special. They are what are called military courts. 

So I think what Congressman Miller and I are 
saying is that the National Guard and the other Armed 
Forces can function well, can have this non-judicial 
punishment, non-court punishment, given by a commanding 
officer of a ship, captain of a company, not a military 
court. 

MRS. FREEDLANDER: It has nothing to do with the 
State militia. 

MR. CASE: Would the minor procedures be a 
military court? 

MR. BOND: Not a court. 

MR. CASE: Would it come under the aegis of 
martial law, subject to or punishable by martial law? 

MR. BOND: In answer to the first question, I 
can absolutely say the answer is No. In answer to the 
second question, I have no idea. I just don't know. 



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1 THE CHAIRMAN: Mr. Bond, may I ask you a ques- 

2 tion. Would Mr. Case's last question be clarified if 
„ you didn't use the term martial law and you didn't use 

4 the term military court but said military law? 

5 DR. BARD: Right. 

q MR. MINDEL: Is there a State military court? 

7 MRS. FREEDLANDER: Yes. 

q MR. MINDEL: Aren't we trying to say they would 

g be subject to the provisions of the State military court 

jq which could be changed from time to time? 
H THE CHAIRMAN: Could be embraced in the term 

12 military law. 

MRS. FREEDLANDER: Article 65 is the code. 

MR. GENTRY: I think Mr. Bond's comments relate 



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Military Code. All we are speaking of here is State mili- 
, 7 tia. The first amendment that was suggested by Mr. Sykes 
18 added the words after military court of the State militia 
or of the State, which I think would bring us back into 
the only scope which we have before us. That is the 
action within the State militia, which is very, very 



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limited. We are not talking about National Guard. 

THE CHAIRMAN: Mrs. Bothe and Mr. Sykes , may 
I ask you this joint question? Wouldn't at least half 
of the confusion be minimized at least if we did not use 
the phrase martial lav; nor the phrase military court but, 
with your other amendment, used the phrase military law? 

MRS. BOTHE: That would be acceptable to us. 

THE CHAIRMAN: Would you accept that amendment, 
Mr. Sykes? 

MR. SYKES: The only thing that bothers me about 
it is that military law seems to me to be a little bit 
imprecise. We had the benefit of a research memorandum 
which says in spite of the fact that martial law has a 
double sense in popular usage, the Constitution intended 
to talk about trial by military courts. If that is a 





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fact, it seems to me we would go closer to the spirit of v 


.* 


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the original Constitution and hit the problem we are try- 




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ing to deal with if we stayed with the idea of trial 




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before the military court. 




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I agree we shouldn't use martial law. 


• 


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THE CHAIRMAN: The difficulty Mr. Bond has is 






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■y that the lower proceedings he says are not court proceed- 

£ ings . The thing that corresponds to what used to be a 

deck court in the Navy, for instance, is not now a court 

4 proceeding. 

r, MR. BOND: That is right. 

r THE CHAIRMAN: You would avoid that by use of 

7 military law instead of military court. 

8 MR. CLAGETT: Actually, isn't his concern that 
g he does not want to interfere with the disciplinary 

10 action of summary, although it is a summary court martial, 

11 on down to -- 

12 THE CHAIRMAN: Mr. Bond's point is that precis e- 

13 ly. He says when you use the phrase military court, you 

14 are eliminating all these lower proceedings because they 
^5 are not. courts . 

1Q MR. SYKES: No, this is phrased the other way. 

17 This is a limitation. It says that if there is going to 

18 be a trial by a military court, that is the only situation 

19 to which this addresses itself, then only militia while 

20 in actual service are subject to it. 

21 This says nothing at all about whether or not 



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1 the militia are subject to the company punishment type 

2 thing. It is because of the way it is phrased that I 

» think his fears are perfectly well taken care of. This 

4. is a protection of civilians against trial by the mili- 

5 tary court, and nobody would think they could be subject 

g to company punishment because they are not in a company. 
7 THE CHAIRMAN: I think we are losing time. We 

g have a motion. You do not accept the amendment as I 

9 remember it -- correct me if I am wrong -- the suggested 

XO amendment was the last clause read: And only members of 

11 the militia in actual military service shall be subject 

12 to trial by, I am uncertain whether you said martial law -- 

13 MR. SYKES: Tried by military law of this State. 

14 MRS. FREEDLANDER: Military law. 

15 THE CHAIRMAN: Which is it? 

ig MR. SYKES: Only members of the militia when in 

^7 actual service shall be subject to trial by a military 

XQ court of this State. 

19 THE CHAIRMAN: All right, that's the motion. 

20 Any further discussion of that? 

MR. MILLER: I can only say I don t want to be- 



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labor this, that still doesn't take care of the question 
of what is actual service. 

THE CHAIRMAN: That is right. This is a sub- 
stitute for your motion, we haven't substituted it yet. 

MRS. BOTHE: One comment. The military law of 
this State embodied in Article 65 refers to three levels 
of court martial, which Mr. Bond talked about, and if the 
word military law were substituted for the court, it 
would encompass the procedures now in Article 65. 

MR. MILLER: There is also a point, Mrs. Bothe, 
that while what Mr. Bond says is true in practical matters, 
there is in military law a right of appeal from the action 
of a summary court. You are in the chain of military 
law even when you start off with company punishment. 

MR. BOND: I am not concerned about the last 
phraseology. I think Mr. Sykes by delineating it, saying 
this applies only to militia in the State of Maryland, 
that does away with the -conflict of Federal law which is 
the most important thing. 

THE CHAIRMAN: Any further questions? The quest- 
ion arises on Mr. Sykes' motion to substitute his motion 



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for that of Mr. Miller. Are you ready for the question? 
All those in favor of substituting Mr. Sykes ' motion for 
Mr. Miller's motion signify by saying Aye. Contrary, No. 
The Aye's seem to have it. The Aye's have it. 

The question now arises on the adoption of the 
substitute motion. Again I will try to state the language, 
Mr. Sykes. Correct me if I don't have it exactly. And 
only members of the militia actually in military service, 
v?hen in actual service shall be subject to trial by mili- 
tary court of this State. Any further discussion? Are 
you ready for the question? All those in favor of the 
amendment signify by saying Aye. Contrary, No. The Aye's 
have it and it is so ordered. 

Is there any further discussion of this section? 

MR. SAYRE: It seems to me appropriate, that 
this be part of the Executive Article inasmuch as I have 
four Constitutions here and they are all in the Executive 
Article because of the governor being commander-in-chief. 

THE CHAIRMAN: Let's leave that for consideration 
of the committee since they indicated they are consider- 
ing where to place this and may make a recommendation that 



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1 there be a special article. 

2 Is there anything further to present in con- 

3 nection with your report? 

4 MRS. BOTHE: Not if the Commission approves 

5 the language of the first part of the report which pro- 

6 vides for powers of the governor and eliminates the 

7 appointment of the adjutant general, et cetera. 

8 THE CHAIRMAN: The Commission approved the 

9 language in italics on pages 12 and 13 with the changes 

10 just made. 

11 MRS. BOTHE: That's our report on the militia. 

12 THE CHAIRMAN: That concludes consideration of 

13 that report at this time. The education provisions will 

14 be considered at a subsequent meeting. I think it is 

15 too late to begin consideration of the other report that 
15 we had hoped to conclude today because it is now within 

17 a few minutes of 9. 

18 We' have made good progress but, on the other 
hand, we are behind the schedule. I think we could accom- 

20 plish a great deal more if we adjourn now and meet at 

21 8:30 tomorrow morning. 



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(Whereupon, the Commission adjourned at 9 
o'clock p.m. to reconvene at 8:30 a.m. on Monday, September 
19, 1966.) 



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CONSTITUTIONAL CONVENTION COMMISSION 

Meeting of the Constitutional Convention 
Commission held on Monday, September 19, 1966, at 
8:30 o'clock a.m., at the Adult Education Center 
University~of Maryland, College Park, Maryland. 
PRESENT: 

H. Vernon Eney, Esquire 

Chairman of the Commission 
Honorable E. Dale Adkins, Jr., Member 
Dr. Harry Bard, Member 
Mrs. Elsbeth Levy Bothe , Member 
Dr. Franklin L. Burdette, Member 
Richard W. Case, Esquire, Member 
Hal C. B. Clagett, Esquire, Member 
Mrs. Maurice P. (Leah S.) Freedlander, Member 
James 0' Conor Gentry, Esquire, Member 
Walter R. Haile, Esquire, Member 
Stanford Hoff, Esquire, Member 
John B. Howard, Esquire, Member 
Dr. Martin D. Jenkins, Member 
Honorable William Preston Lane, Jr., Member 
Robert J. Martineau, Esquire, Member 
Edward T. Miller, Esquire, Member 
Charles Mindel, Esquire, Member 
Mr. E. Philip Sayre, Member 
Melvin J. Sykes, Esquire, Member 
John R. Hargrove, Esquire, Member 
Charles Delia, Esquire, Member 
Mr. L. Mercer Smith, Member 
John Mitchell, Esquire, Member 

Reported by: 
C. J. Hunt 

and 
A. A. Castiglione 



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1 ALSO PRESENT: 

2 John C. Brooks, Esquire, Executive Director 

Dr. Clinton Ivan Winslow, Consultant 

3 Dr. John H. Michener, Research Assistant 

Stephen H. Sachs, Esquire, Reporter 

4: 

5 

6 THE CHAIRMAN: The Committee V7ill come to order 

7 We will proceed this morning with consideration 

8 of the Seventh Report of the Committee on Elective Fran- 

9 chise and Declaration of Rights. Report deals with 

10 suffrage and elections. 

11 We have two Reports from this Committee. This 

12 is the Seventh Report, dated September 18. 

13 JUDGE ADKINS: Would you state that again, Mr. 

14 Chairman? 

15 MR. GENTRY: Seventh Report, Elective Fran- 

16 chise. 

17 THE CHAIRMAN: Delay that. We will have to 

18 change the arrangements because of the inability of 

19 some of the reporters to be here until later. 

20 We will take up first the First Report of the 

21 Committee on State Finance. Dick, are you ready on that? 



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being here? 



is coming 



he is here? 



MR. CASE: Yes, I am ready. 

THE CHAIRMAN: Do you figure on Stephen Sachs 

MR. CASE: It doesn't make any difference. He 

THE CHAIRMAN: Do you want to delay it until 

MR. CASE: No. 



THE CHAIRMAN: This is a Report dated August 
21. You have had it for about a month. 

MR. CASE: This subject is pretty technical 
and also pretty boring, I am afraid, but I am not going 
to take a great deal of time in discussing the historical 
background or hysterical background, as the case may be, 
of Section 34 of Article III. It is set forth in some 
detail in the Report of the Committee. We have drawn 
largely on the reports of the proceedings of the Consti- 
tution of 1851, because it really was in this Constitution 
that the first restrictions upon the incurring of State 
debt appeared in the Maryland Constitution, and incidental- 
ly, for those, if there are any reporters here, I commend 



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very heartily a thorough reading of that volume, which, 

while it is classified as a rare book, can be obtained 
3 in Baltimore, and it is tremendously interesting and 

valuable, the information that can be gotten from it. 
5 Suffice it to say that the background of this Section 

stems from the financial crisis of the late 40 's. I am 
' talking about 1840 now, when the State was embarrassed 

and almost defaulted upon its obligations. 

Curiously enough, State obligations did not 

have their genesis in the construction of schools or 

roads or works of that nature, but rather were issued to 

what we would now consider private corporations, namely, 
^ the railroads, canals and turnpikes, and the procedure 
■^ was that the State would issue the bonds to the railroad. 
1^ Let's just say the B&O Railroad, which was one of the 
^ larger holders, temporary holders of State bonds, and the 
*' railroad would then take those bonds and sell them, usually 

at a fairly steep discount, and usually in the foreign 

market . 

The idea was that the State, which had received 



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stock in exchange for the bonds, would be the dividend 



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recipient of these works as they came to be known , works of 
internal improvement and with the dividends received 
from the stocks and the yields received from the invest- 
ments, the bond interest would be paid, and there would 
be considerable left over to eliminate all taxes, so that 
the State, going into the business of owning a share in 
the works of internal improvement, would eventually find 
a way to eliminate all taxes of all kinds and go merrily 
on its way, which was a great idea except that it didn't 
quite work that way in the last analysis, because the 
depression of '47 came along and the whole thing blew up, 
including most of the railroads and canals and turnpikes 
that had been financed, and the State was left with the 
problem of, for the first time, levying a real estate tax 
to pay off these bonds, which it did. 

This abuse was brought to the attention of 
the Constitutional Convention of 1851, and as a result, 
Section 34 was enacted. 

It has been amended from time to time since 
then, as the Report will indicate, showing at one time, 
or giving at one time the right to borrow in anticipation 



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1 of other borrowing, which would be called in the business, 
bond anticipation financing, and another time to permit 

3 some assistance to work of internal improvement to the 

4 Southern Maryland counties because the B&O Railroad 

5 didn't run in Charles, St. Mary's and Calvert Counties, 

6 and finally, to allow the State to issue bonds to finance 
• a veterans' bonus if referendum of the people approved 

8 that kind of a loan. 

9 Now, that for the historical background of 
10 Section 34. 

H Our Committee has taken a considerable amount 

12 of time to come up with a meaningful division of this 

13 Section, and in this process we have discussed the sub- 

14 ject, first among people who are knowledgeable in public 

15 finance, lawyers who are knowledgeable in public finance. 

16 w e have also had hearings in which the leading investment 
1^ banking houses in Baltimore have been represented, who 

18 deal in this subject, and the leading commercial banks 

19 in Baltimore were invited to deal in this subject, and 

20 a long hearing was held with them. In addition to this, 

21 and perhaps even more important, after our judgment was 

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crystallized to a point of a first draft, the Committee 
then went to New York City, where we were fortunate 
enough in being able to speak to one of the senior analysts 
of Moody's Investment Service, which is the Bible of 
the municipal bond business in this country. Moody's 
is the most meaningful ranking agency, and when I say 
ranking, I mean ranking in the sense of placing bonds 
in the order of their desirability for investment. They 
are the number one agency which writes municipal bonds, 
and our draft was submitted to the analysts at Moody's, 
with a number of questions and answers from this work 
product with the end result that we have the assurance 
that the revisions that we propose would not in any way, 
as far as can be determined as of today, be detrimental 
to the credit of the State and indeed some of the things 
that have been suggested could conceivably and in the 
long run assist materially the credit of the State. 

Now, the credit of the State is excellent, 
and it is for this reason that we must go carefully and 
intelligently about any revision of Section 34 that we 
try to undertake. The credit of the State is Triple A, 



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1 which is the highest credit rating that Moody's affords, 

2 and it has been that way, except for one short period, 

3 for many years. We therefore approach this problem 

^ knowing full well that we are at the top now and that the 

5 Section that we have had all these years has worked fairly 

6 well, and hence its change should be brought about only, 

7 as I said earlier, in a meaningful and intelligent way. 

8 Despite all that we have, or the Committee 

9 recommends a rewriting of Section 34, and the best, way 

10 to get at this, I suppose, is to look at old Section 34 

11 and new proposed Section 34, which you will find as 

12 attachments A and B of your Report, and I think, 

13 Mr. Chairman, since this is only one section, and since it 

14 is somewhat complex, that unless you have a better approach 

15 or suggestion of a better approach, I wou Id read sentence 

16 by sentence the new material, and then comment on what 

17 it takes the place of and what the evils that are sought 

18 to be corrected are. 

19 THE CHAIRMAN: I think that should be done. 

20 MR. CASE: Ladies and Gentlemen, if you will 

21 look at V •- 



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THE CHAIRMAN: Let me suggest you do that, 
go through the whole thing, and then we come back and 
take up sentence by sentence for discussion. 

MR. CASE : This is the new proposal and bear 
in mind, we will have to refer back to A . V starts out, 
The State shall have the power to incur indebtedness for 
any public purpose in such manner and on such terms and 
conditions as the General Assembly may prescribe. 

I might say prefatorialy to this, that many 
of the words used in this particular Section are words 
apart and have definitive meaning which have been dis- 
tilled through generations of decisions of appellate 
tribunals. Everybody around this table knows what a lover 
of words I am, but unfortunately I was unable to carry 
forward my own precepts in doing this piece of drafting, 
and I apologize greatly toyou for this, but it is one of 
the few times that I have sort of been backed out of my 
own position. 

Anyway, this sentence gives the general power 
to the State to borrow money, to incur indebtedness, and 
it is a general grant of power and at this level, or at 



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first sentence level, it is restricted by the words, any 
public purpose, vzhich have been the subject of a great 
number of decisions by courts of last resort, both in 
Maryland and elsewhere and is essentially what the lawyers 
at least referred to as the due process t^st, meaning in 
substance that no person can be deprived of his property 
without due process of law, which as further distilled 
means that unless the money is to be used for the public 
good, as distinguished for a private good, the State is 
powerless to extract money from the citizen, so the test 
here is one which has been accepted as a meaningful test 
by all jurisdictions, as I say, including our own Court 
of Appeals in the famous case of Frostburg versus Jenkins. 

The second sentence fits in with the first: 
All such indebtedness, reading from Line 3, shall be 
secured from an irrevocable pledge of the full faith 
and credit and unlimited taxing power of the State, unless 
the act of the General Assembly purporting to authorize 
the creation of such indebtedness concludes such irrevocable 
pledge, the authorization so authorized shall not be con- 

> 

sidered an indebtedness of the State. 



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1 This sentence corrects a number of weaknesses 

2 in Section 34 as it now stands. If you will look at the 
5 two sentences — if you will look at Section 34, you will 

4 see it says, No debt shall be hereinafter contracted by 

5 the General Assembly, unless such debt shall be authorized 

6 by law, providing for the collection of an annual tax or 
V taxes sufficient to pay the interest on such debt as it 

8 falls due, and also to discharge the principal thereof 

9 within fifteen years from the time of contracting the 

10 same. The taxes levied for this purpose shall not be re- 

11 • pealed or applied to any other object until the said debt 

12 and interest thereon shall have been fully discharged. 

13 That that I just read has been, and it is 

14 recommended to be, superseded by the language in V. 

15 the problem stems from the sentence in the 

16 present Constitution, revolving around two concepts, one a 

17 practical one, and one a legal one. The legal one is in- 

18 volved in the use of the word, debt, because that word 

19 has given birth to probably more litigation than any other 

20 single word in this particular Section, and just recently, 

21 in the last term of the Court of Appeals, there were no 



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1 fewer than four cases which went to the court by bond 

2 attorneys seeking to have the word, debt, defined. 

3 Without going into the layman's language, those 

4 who are not working in this field can wonder with some 

5 degree of justifiable amazement, I think, why this 

6 should be the case, but nevertheless it is the case, and 

7 it stems from an old precedent called Baltimore versis 

8 Gill, in which the Court of Appeals held that the City, in 

9 seeking to hypothecate stock, that is to say, pledging 

10 stock that it owned to secure the indebtedness of 

11 another entity, by pledging its own property, was thereby 

12 creating a debt, and therefore that the act of pledging 

13 was invalid within Section 34, so ever since that time, 

14 whenever we have had a situation in which bonds are to 

15 be issued, the question always comes up in bond attorneys' 

16 minds as to whether or not you are creating a debt, be- 

17 cause if you are creating a debt, then you are creating 

18 what is known as a Section 34 debt, and all of the other 

19 provisions of Section 34 have to be followed, the principal 

20 one being, or the principal ones being first, that you 

21 must have a tax which will support that debt, and secondly, 



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that the debt has to be paid off in fifteen years , witness 
two cases in point: A school wishes to build a dormitory. 
It gets the Legislature to say, in effect, that the bonds 
which will be floated to provide the funds for that dor- 



4 



5 mitory can be serviced by rents or fees charged for the 

use of that dormitory, and by existing fees or rents 
' charged for the use of a dormitory in existence. The 
question is whether or not the State can take existing 
fees, revenues from an existing structure, which might 
otherwise go into general funds, pledge them to the use 
of the bond service requirements tobji'ld the new dormitory. 
Is this a debt within the meaning of the Section. The 
*^ Court of Appeals recently rules that it was not, and 
^ that bonds could be issued for longer than a period of 

*5 fifteen years, and that there need not be a special tax 
to service that particular issue of securities. 



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1? Example number two: The Maryland Port Authority 

last year sought to, and is now going to build a center 
19 in the City of Baltimore. It got authority from the 
' Legislature to float bonds to be serviced solely from 
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that there might be enough revenues thrown off by the 

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center originally to pay for the debt service require- 

ments on the bonds, and therefore investment bankers 

advised the Port Authority that it would have to place 

a substantial amount of its existing cash with an 

independent trustee to secure the ultimate payment of the 

bonds. A million dollars was the figure suggested. 

The bond counsel questioned this because it looked like 

this was something in the nature of a hypothecation of 

the stock that Baltimore City had done years ago in the 

Gill case, which was found to be invalid, so down to 

Annapolis we had to go to get an answer to this, and the 

Court of Appeals said, after hearing argument and almost 

reargument , that this was not the creation of a debt 

and that the Port Authority could be ahead. 

16 Well, these two illustrations serve to 

demonstrate that the word , debt, in the context that is 

found in Section 34, is a hard word to get around. 

The practical objection to the first sentence 

in Section 34 relates to the requirement that a. specific 

tax be used, or pledged to service the bond issue. It 



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has been traditional in Maryland, with but two exceptions, 
that the real estate tax is the tax which is used to 
service State indebtedness, and that is all it is used 
for, so that the State tax which you now pay is determined 
strictly by the amount of bond service requirement that 
the annuity bond fund requires in any given year. 

This has two, or this generates two problems. 
One is that you have got to tack on a tax, usually the 
real estate tax on every bond issue, and secondly, it 
prevents, and if this is continued, would prevent the 
elimination at the State level of the real estate tax, 
vhich is thought by most modern physical thinkers to be a 
good thing. It is generally believed, Cooper-Hughes 
was the latest, but certainly by no means the only report 
which recomtended to the people that real estate tax be 
reserved entirely for the local political, subdivisions. 

This is currently impossible, although 
technically this can be subverted, but actually until the 
bond issues which are now in existence, which are being 
serviced by real estate tax, there has to be a real 
estate tax available to service these bonds. 



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In lieu of these procedures our Committee 
has recommended that the indebtedness, instead of being 
secured by a given tax, shall be secured by an irrevocable, 
and here again we come to words of art, which are known to 
bond dealers and attorneys throughout the country, 
irrevocable pledge of the full faith and credit and un- 
limited taxing power of the State, and as I say, these 
are words of art, and the second clause, again, unless 
the act of the General Assembly purporting to authorize . 
the creation of such indebtedness includes such an ir- 
revocable pledge, the obligation so authorized shall not be 
considered an indebtedness of the State; which means 
that unless the Legislature in effect pledges the full 
faith and credit, then the obligations which are to be 
incurred are not to be considered debts of the State 
and are not controlled' by this particular Section. 

DR. BARD: Do you want us to interrupt you, sir, 
as you go along? 

MR. CASE: What did you say? 

DR. BARD: Shall we interrupt as you go? 

THE CHAIRMAN: I think it would be better to 



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go through the v;hole and then come back and take it up 

p 

sentence by sentence. 

* MR. CASE: The next sentence says, beginning 

at Line 8, If at any time the General Assembly shall fail 



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5 to appropriate sufficient funds to provide for the timely 

payment of the interest upon an installment of principal 
' indebtedness created on behalf of the State as provided 

8 in this Section, the Comptroller shall set apart from the 

9 first revenues thereafter received applicable to the 
general funds of the State a sum sufficient to pay such 
interest and installments of principal. 

This is a nev7, completely new provision in- 
*** serted into the Constitution, but one which we strongly 
" recommend. This sentence is found in the New York State 

15 Constitution and is considered by investment banking 

16 people and by Moody's Investment Service as a cornerstone 

1 7 of strong meaningful credit of a State entity. 

It says, in effect, that even though the State 



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taxing power, just to make sure, just to make sure that 



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out of the first tax receipts that are undedicated, that 
is to say, not dedicated funds, enough to pay the principal 
and interest of all outstanding bond issues, and I can't 
emphasize too strongly how this point has been stressed 
to the Committee and based upon my own experience in this 
field, how, or what an improvement I think this would 
be over the existing Constitution. 

The next sentence says, All State indebtedness 
shall mature within twenty-five years from the time 
when such indebtedness is incurred. 

I previously read to you a sentence which put 
a limit of fifteen years on bonds that can be issued by 
the State, and this fifteen-year period has been with 
us since 1851. It today has no meaningful relationship 
to modern financial practices. Generally speaking, any 
capital asset which is constructed by funds produced 
by the sale of bonds will be an asset which will last 
more than twenty-five years, and generally speaking, 
bonds, the maturity of bonds, all of which are serials, 
if everybody understands what I mean, that is, they come 
due each year over a period of years , but the modern day 



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trend is to sell bonds from twenty to twenty-five years. 
Well, this provision doesn't say they have to be twenty- 
five years. It merely says that they can run out that 
far if the fiscal people think that they ought to go that 
far. 

The fifteen-year period also has the effect 
of bunching bond service requirements over a shorter 
period of time and to that extent, accentuating the 
impact of the taxes that are necessary to pay the debt 
off. 

We got the advice again of Moody's on this 
precise question because in years past, it was the cry of 
some of the State fiscal people, particularly the last 
Mr. Hooper Miles, who was Treasurer of this State for many 
years and who I had many conversations with about State 
borrowing when I served in the Attorney General's Office 
and doing the tax and fiscal work for the State, who 
felt very strongly that the fifteen-year period, the fif- 
teen-year limitation was a meaningful and necessary thing. 
With all due respect to him and to his memory, we find 
that this is not the case, and that the fifteen-year period 



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can easily be extended to twenty-five without any serious - 
without any effect on the State's credit rating. This 
being true, it is our best judgment that twenty-five years 
gives more flexibility to the fiscal management of the 
State than does the fifteen years and is a desirable 
change . 

The last sentence has been suggested in the 
alternative. John, I don't know whether everybody has the 
second sheet. 

THE CHAIRMAN: That is Page G. 

MR. BROOKS: That is attached to the Legislative 
Report. 

MR. CASE: I took mine off and lost it. They 
won't know what I am talking about, and neither will I, 
as far as the last sentence is concerned. 

THE CHAIRMAN: It is Page g, headed Proposed 
Substitute for Article III, Section 34. It was originally 
attached to the Legislative Department Report, and we 
suggested yesterday you tear it off. 

MR. CASE: The fact that page was attached 
to another Report is not to be taken as indicative of the 



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1 other fact that our Committee poked its nose into other 

* Committees' business. 

3 Reading from Line 16, and I will read from 

4 B, because it is B which has the Committee's recommenda- 

5 tion, although G, which is the one you have torn off 

6 the other Report is something that was brought to our 

' attention because two Members of our Committee, while not 

® feeling overly strong about it, would like to have it 

* discussed as a matter of policy, and 1 will state the 

problem, and then we can discuss it, but the broad out- 



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H line of this is as follows: 

The Section says, The assets or credit of the 

13 State shall not in any manner be given or loaned to any 

14 individual, association, or corporation unless a public 

15 purpose will be served thereby and unless authorized 

16 by an act of the General Assembly stating such public 

17 purpose 

18 Let's think in terms of the philosophy of that 

19 sentence rather than its precise terms, and as you are 

20 thinking about it, I shall read to you the Section in the 

21 existing 34 which deals with the same subject, and it says, 

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beginning on Line 7, The credit of the State shall not 

2 

in any manner be given or loaned to or in aid of any 

individual, association or corporation, nor shall the 

General Assembly have the power in any mode to involve 

5 the State in the construction of, et cetera 

g 

I will come back to that. 

Now, the credit clause, the credit has also 
been a troublesome, a very troublesome Section, as far 
as bond attorneys are concerned. It says, The credit of 
the State shall not in any manner be given or loaned 
to or in aid of any individual or association or corpora- 
tion, and the question is what is meant by credit, and 
^ does this word have any other meaning than debt, and if 
^ so, what is it. An example: Some years ago in Governor 
15 McKeldin's administration, it was thought desirable for 
*° the State to make available to the Hopkins a substantial 
^ sum of money in aid of building, in the Engineering 
1® Building. An act was therefore passed authorizing the 
1* issuance of bonds, and the idea being that the proceeds 

of those bonds would be given to the Hopkins. Hopkins is 
not a part of the State, in the sense that it is part of 



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1 the State government, and bond counsel said, I don't 

2 think this can be done because what we are doing here is 

3 using the State's credit in aid of a private institution, 

4 and this Section 34 says that you can't do that, and very 

5 frankly, it looked like a pretty good case, because the 

6 Hopkins is a private institution, the State's credit 

7 was going to be used, they were going out to borrow this 

8 money and turn the cash over to it , and it would seem 

9 that the taxpayer had a pretty cold case, but as often 

10 happens in the Court of Appeals in Maryland , as in other 

11 courts, and the Supreme Court of the United States, the 

12 result to be reached was more important than the technical 

13 arguments that were advanced by able counsel, and the 

14 Court said, Well, this is not credit that you are doing 

15 here, this is cash. You are giving cash. True, you are 

16 using your credit to get the cash, but by the time you 

17 have your transaction with the Hopkins , you are giving 

18 cash and cash is not credit, so it is perfectly all right. 

19 A progenitor of that decision was one which 

20 came up in a little town of Frostburg, in Western Maryland, 
:: which was a depressed area at the time, and probably 



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I still is to some extent, because it is in Appalachia , 
and the town fathers up there decided that they might 

* possibly induce a garment factory to locate there if 
they could sell bonds and turn the money over to, or build 

5 a building and rent the building to the garment factory, 

* and an act was passed by the General Assembly to allow 
1 this to be done, and a taxpayer filed suit against the 

° procedure on the theory that, My God, you are taking the 

* credit of the County, and here we are dealing with the 
County, but there is a provision in the Constitution 

II dealing with counties, which is fairly similar to 34, and 
the beneficiary of this benevolence is going to be a 

13 private corporation, namely the garment factory, and how 
1^ in the world can you justify this. 

15 Well, the Court of Appeals hemmed and hawed 

16 about that for a while, and over the rather vigorous 

1 7 dissent of the most recent chief judge, said, without 

18 really talking about the word credit too much, that if 

19 there was a public purpose to be served by the use of 

20 these funds, which really 'inured to the benefit of the 

21 population, who were going to pay the taxes to pay off the 



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bonds, and if their representatives felt that this was 
a desirable thing, then there was no depreciation of proper' 
ty without due process of law in this case, and it 
met the constitutional test, both in the Maryland 
Declaration of Rights and the Fourteenth Amendment to the 
Federal Constitution, so that we have, therefore, a line 
of authority in this State, and there is a much more 
distinct line of authority throughout the country, that 
public credit can be used to further the public good, 
if it can be shown that a public purpose is served there- 
by. 

One other illustration might be useful here. 
In many parts of the country, including Maryland, we 
have what is known as urban renewal projects. Some of 
these urban renewal projects have to do with industrial 
development. To finance these projects, it has been 
customary to permit the local political subdivisions to 
form nonprofit corporations, the object of which or the 
purposes of which would be to clear land , buy buildings, 
clear land and make properties available for industrial 
expansion . 



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These projects are geared to areas where un- 
employment is high so that plants can be brought into 
these areas and employment is given. Traditionally, 
States have been allowed to guarantee these obligations 
and against attack by taxpayers that this is a loaning 
of the State's credit to the private corporation, which 
will ultimately build the factory 

The courts throughout the country in a great 
number of cases have held that so long as the public 
purpose has been served, the credit of the State can be 
used in this way. 

There is a great deal of question in the minds 
of the Committee as to whether these worthwhile projects 
and projects of modern financing technique can be 
utilized in Maryland; perfectly obviously they can't be 
utilized without a long series of litigation, so what 
the Committee has sought to do is to say that the assets 
or credit of the State cannot in any manner be given to 
any individual, et cetera, using the same language, but 
putting in there the test of public purpose, and also 
requiring the act of the Legislature which will do this 



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1 particular thing to state on its face what the public 

2 purpose is, so that all will know and so that it can be 

3 brought to the courts if it is necessary to bring it to the 

4 courts, and permit the courts to pass a judgment on that 

5 question. 

6 The business that has been added on G indicates 

7 that another test, or another safeguard should be hung on 

8 the use of the State's credit, and that is that it should 
* not, or gift of the State's assets, which is not meaning- 
ful and the brackets indicate in my draft that I handed 



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H Mr. Brooks that I wanted that struck out, of State assets 
doesn't belong in here because you can't give assets for 

13 twenty-five years, but what it purports to say is that 

14 the State's credit if given for a public purpose should 

15 not be extended for a period more than twenty-five years 

16 so that in the example I give, it would limit the bond 

17 issue which could be guaranteed to twenty-five years issue. 

18 That is the same as the State bond issue itself could be. 

19 I will come back to the pros and cons of that in a minute, 

20 because I now want to turn to the balance of Section 34, 

21 existing Section 34, and tell you what has happened to it, 



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or should I more precisely say why what has happened to 
it has happened, because what has happened to it is that 
it has been deposited gently but firmly in File 13. 

Starting off with Line 9, because all of the 
rest of it has been eliminated, the Section says, Nor 
shall the General Assembly have the power in any mode to to 
involve the State in the construction of works of internal 
improvement nor in granting any aid thereto which shall 
involve the faith and credit of the State. 

This has been eliminated, because the words, 
works of internal improvement, have been held to be words 
of art. They mean turnpi.kes, canals, railroads. These 
are beautiful words, I wish to emphasize this, they are 
great words, but unfortunately they have long since lost 
their meaning in the context of the financial community. 

Line 12: Nor make any appropriation therefor", 
except in the aid of construction of works and internal 
improvement in the counties of St. Mary's, Charles 
and Calvert, which have had no direct advantage from such 
works as have been heretofore aided by the State, and this, 
as I said earlier, stems from the historical fact and now 



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1 an anachronism that these three southern counties were not 

2 blessed by the B&O Railroad and it was tacked on in a 

3 later draft, and it was thought that maybe you could come 
* back with works of internal improvement in these three 

5 counties, which is a lot of hogwash. 

6 MR. MILLER: Are slot machines included? 

7 MR. CASE: I don't know whether they are an 

8 improvement or not. They sure are internal, and infernal I 

9 might say, and providing that such aid, advances or 

10 appropriations shall not exceed in aggregate sum $500,000. 

H That deals with Calvert County, et cetera. That is all 

12 eliminated as being completely passe. 

13 Line 17: And they shall not use or appropriate 

14 the proceeds of the internal improvement companies or the 

15 State tax now levied or which may hereafter be levied to 

16 pay off the public debt or to any oth x er purpose until the 

17 interest and debt are fully paid, or the sinking fund 

18 shall be equal to the amount of the outstanding debt, 

19 which goes back to the historical genesis of all of this 

20 which 1 told you about, which the framers in '51 wanted 

21 to make it absolutely certain that the yield from the 



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securities earned would go to pay this debt, and the 
taxes would be used to pay it, and the sinking fund 
would be held inviolate for this purpose, but this has 
long since passed away, and it is completely meaningless 
today. Semicolon, but the General Assembly may authorize 
the Board of Public Works to direct the State Treasury 
to borrow in the name of the State and in anticipation 
of the collection of taxes such sum or sums as may be 
necessary to meet temporary deficiencies in the Treasury, 
to preserve the best interests of the State in the con- 
duct of the various State institutions, departments, 
bureaus and agencies during each fiscal year. 

Now, this was a later amendment, and is known 
by a technical phrase of tax anticipation borrowing, and 
this is engaged in by a great many political entities. 
I don't think it has ever been engaged in by the State, 
although I could be wrong about that, at least not in my 
experience. It has been by certain cities and counties 
of this State, and it permits the local political sub- 
divisions or the State, as the case may be, to borrow 
money in anticipation of tax revenues, and then the taxes 



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1 come in and the indebtedness is paid off, and this is a 

^ useful tool, equally as useful as another fiscal technique, 

3 which is known as bond anticipation financing. Bond 

^ anticipation financing is being used today, as a matter 

5 of fact, in quite a prevalent way because as many of you 

* know, interest rates today are at all time highs, and 

' a lot of the communities are reluctant to commit their 

8 governments to a long term borrowing at these high interest 

9 rates, so to get away from this, what they are doing is 
10 borrowing short term in anticipation of permanent finan- 
H cing, and we call this bond anticipation financing, and 

12 there is no provision in the existing Maryland Constitution 

13 to do this. Both tax anticipation borrowing and bond 
1^ anticipation borrowing are covered in the new draft in 

15 the first sentence, where it says, That the State shall 

16 have the power to incur indebtedness for any public pur- 

17 poses. Those words, in and of themselves, are sufficient 
16 to cover first permanent financing, second, bond anticipa- 

1 9 tion financing, third, tax anticipation financing. That 

20 being true, the sentence in old 34 that I read a few 

21 moments ago will be eliminated; beginning at Line 27, 



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subject to the approval of the Board of Public Works and 
as provided by law, the State Treasury is authorized 
to make and sell short term -- well, temporary emergen- 
' cies, but such notice must only be made to provide for 
■ appropriations already made by the General Assembly. 
C Emergency financing, through the borrowing 

technique, was something that was used in the depression. 
It is not used today, as far as I know, because nothing 
is that big an emergency. As a matter of fact, the last 
time it was tried in Baltimore City, it was tried, and 

11 the City contitutional provision dealing with that has 

12 a provision similar to this, but the situation was down 

13 in South Baltimore, an old-time, it must have been pretty 

14 old, sewer main broke, and the result of that was that the 

15 sewage was running down the gutter in this area, and 

16 the City Council sought to issue a series of notes 

17 because this was an emergency, to clean this mess up, and 
] a taxpayer filed a suit, and the Court of Appeals said, 
1£ Of course, everybody knows, there is no emergency here 

because that has been an old sewer line for years, and 
: everybody has known it, and you could have fixed it up if 



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1 you wanted to, so you have to go back the usual way, and 

2 it is just not an emergency so what is an emergency, and 

3 what isn't an emergency as far as borrowing is concerned 

4 does bring forth and can bring forth various shades of 

5 views , but whether it is or isn't, it is covered again 

6 by the first sentence, which deals in a general way with 

7 all types of borrowing. 

8 Continuing, Section 31: The General Assembly 

9 may contract debts any amount that may be necessary for 

10 the defense of the State, again covered by Lines 1 and 2 

11 of the proposed draft. As you can see, as we go through 

12 this, Lines 1 and 2 take care of about 16 lines of the 

13 present Constitution, and although again I reiterate 

14 I hate to see such apparently plain sort of words, do all 

15 this work, and take the place of something that has been 

16 with us for a long time, I must confess that I think it 

17 is the proper thing to do in this case. 

18 Now, continuing, And provided further that nothifr 

19 in this Section shall be construed to prohibit the raising 

20 of funds for the providing of aiding or compensating in 

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the State shall deem proper those citizens of the State 
who have served with honor their country and State in 
time of war; provided, however, that such action of the 
General Assembly shall be effected only when submitted 
to and approved by a vote of the people of the State at 
the general election next following the enactment of 
such legislation, a provision which was inserted to 
grant a bonus for the soldiers of World War I, which 
I assume got the benefit, the political mileage was 
gotten out of it by the sponsors of this particular Sec- 
tion, but happily no bonds were ever issued by the State 
. to take care of the situation. If soldiers' bonuses are, 
and I am not now suggesting that they are or may be or 
are not or may not be a public purpose, then under the 
proposed Committee's draft, this would be permissible. 
There is no need for this language, and it is therefore, 
its elimination is therefore suggested. 

That, Mr. Chairman, is a somewhat long-winded 
explanation of new Section 34. 

THE CHAIRMAN: I think we might go back now 
and take up the consideration of the Section sentence by 



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sentence. Mr. Gentry? 

MR. GENTRY: The second sentence. 

THE CHAIRMAN: Let's take first the first 
sentence. I am reading from Page B, and giving the lines. 
They may vary somewhat from Page G. This is the first 
two and a half of the third line: The State shall have 
the power to incur indebtedness for any public purpose 
in such manner and upon such terms and conditions as the 
General Assembly prescribe. Mr. Miller? 

MR. MILLER: A comment by one of our good 
advisors, that I will pass on. Would it be better to say 
the General Assembly rather than the State? The State 
is sort of a catchall phrase. 

MR. CASE: The General Assembly is not the 
borrowing agency. It is the State, and it is the State's 
credit which we are talking about here, so I think it 
wjuld be inappropriate to say that. 

MR. MILLER: Is there anybody else could borrow 
money besides the General Assembly? I am seeking 
clarification. 

MR. CASE: Can anybody else borrow money? 



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MR. MILLER: Is there any agency that would 
be affected by this act? Would the Treasury or some- 
body else be able to borrow? 

MR. CASE: If it is a State indebtedness, 
only the State will do it. The mechanics of it, of how 
the issue comes to market, if that is what you are talk- 
ing about, is covered by the words, in such manner and 
upon such terms and conditions as the General Assembly 
may prescribe. 

Ofttimes in basic documents, and by that I 
mean Constitutions, you will find rather lengthy state- 
ments of whether the bond, or how the bonds shall be 
set, whether they shall be maturity or term, that they 
shall be dated, that they shall be signed, facsimile 
signatures are proper, seals shall be attached, et cetera. 
We have not chosen to use that method here, but merely 
permit the General Assembly in its wisdom to set the 
mechanics of borrowing. 

THE CHAIRMAN: I think Mr. Miller's question, 
Mr. Case, was whether or not this sentence authorizing the 
State to borrow would confer authority on any other State 



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official, such as the Treasurer or the Comptroller or 
the Governor to borrow for the State. 

MR. MILLER: I have no quarrel with these words 
I was merely asking a question. I am not trying to amend 
it, but I wanted to make sure. 

MR. CASE: It would not. 

DR. WINSLOW: May I say that I prompted this 
question, remembering that in the United States Constitu- 
tion, for instance, a similar power is to be found in 
Article I, Section 8, which says that the Congress may 
borrow money, rather than saying the United States shall 
have power to borrow money. I would assume, sir, that the 
State has power to borrow money, even if there were no 
such Article as this in here. This is intended, I 
should think to put upon the General Assembly the power 
to incur indebtedness in the name of the State. 

MR. CASE: I think it is academic, because the 
State shall have the power, assuming that that is declara- 
tory, the inherent power as a necessary declaration. 

THE CHAIRMAN: It goes further and says that 
the State has the power, to borrow in such manner and such 



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1 terms as the General Assembly prescribed. 

2 MR. CASE: The General Assembly puts the 

3 thing in motion. 

4 DR. BURDETTE: I have two comments that I 

5 should like to be enlightened about, if I may. The first, 

6 exactly the one that Dr. Uinslow has brought up, and 

7 I remind the Chairman of the Committee that he himself 

8 was speaking yesterday about the constitutional theory 

9 that the State Cons titution , as I understood him, has a 

10 limitation on powers, not a grant of powers because the 

11 State has all the power except as it may be limited. I 

12 would say I am somewhat unhappy about saying in the Con- 

13 stitution that the State has power to incur indebtedness 

14 when it certainly does; while the former Constitution 

15 specifies, and I gather the Chairman of the Committee 

16 thinks it is inadequate, 34, no debt shall hereinafter 

17 be contracted by the General Assembly. 

18 I would say, Mr. Chairman, we have gotten a 

19 situation whereby we have made it perfectly clear, and 

20 this is an improvement, that only the General Assembly 

21 can authorize indebtedness, but by doing that, our language 



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1 has gotten us into being a bit sententious. 

It may be only acedemic, but I wish we could 

3 improve it. 

MR. CASE: Bankers don't share that view. 

5 DR. BURDETTE: They do not share the view that 

" the State has the power to tax, or have the power to 

' borrow inherent? 

8 MR. CASE: They don't share the view that this 

** language is unfortunate. 
10 DR. BURDETTE: Well, the complaint I have is 

xx that it is necessary for the Constitution to give the 

x ^ State power to incur indebtedness. This is a switch of 

13 theory, but I don't want to belabor this, but another 

14 on e I would like to ask about, why is it that we should 

15 n ot have in this sentence in some fashion the meaning 

16 which the Chairman has elucidated that this public purpose, 

17 when a loan is given in the public interest to associations 
1Q corporations, should be spelled out, why should that not 
19 be spelled out in this case for the very same purposes 
r > that the Chairman gave? That isthat all should know, I 
21 believe were his words, what the public purpose is in the 



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minds of the enactors and those all, I should think, would 
be the courts in evaluating whether or not it is a public 
purpose, and the public, in understanding what the intent 
of the General Assembly may have been. 

MR. CASE: The answer to that is, of course, 
that the Section does provide that in these acts, the 
legislation must state the public purpose. Nov;, it 
may state it in a stereotyped cookbook fashion, but it 
has to be stated. By that I mean in order to alleviate 
unemployment in such and such a place, the General Assembly 
finds it in the public interest to incur debt, et cetera. 
This required that. 

DR. BURDETTE: hr. Chairman, I am wondering if 
it does. This is exactly what I am trying to get into. 
You see, it does in the last sentence with respect to 
lending the credit of the State to some agency, but it 
would seem to me that the very language that you suggested, 
sir, might be left out of the statute and then the courts 
would be put upon the problem of finding what the purpose 



was . 



I grant you, sir, that the Legislature in fore- 



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sight would put those words in anyhow, but I see nothing 




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in the first sentence which required them to put in such 




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words . 




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MR. CASE: You conceivably have a point there. 




5 


There would be no objection as far as I am concerned in 




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including those words, although I think it would be a 




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redundancy because the thing the Section, the last sen- 




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tence, probably does require this; but the thing about it 




9 


is, Dr. Burdette, that you overlook, is a substantive 




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point, and that is that no matter what the General 




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Assembly says, these are just so many words. They are 




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necessary words, but they are just so many words, until 




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if they are challenged and a decision is made by the 




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court. In all of the cases throughout the country, this 




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has been stated to be true. 




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We have a doctrine of legislative finality 




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in certain areas, but in this area the existence of a 




18 


public purpose as such has to be determined in the last 




19 


analysis by the Court. 




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DR. BURDETTE: Exactly. 




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MR. CASE: And the Court does this on the due 






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process approach. We feel that this is the meaningful 






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way to test this, and this is what the law of the State 






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should be. 






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DR. BURDETTE: I don't mean to belabor this, 






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but I would like to press the point a bit that if the 






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court could have the benefit of what the General Assembly 






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thought the purpose was, we would be better off. I think 






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the public would be better off. I remember a case in the 






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Kentucky highest court in which it held that, as I recall 






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my very small legal training, that a statute was not a 






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public purpose, but I had a feeling in reading the case 






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that, this is a commemorative statute to a war hero. If 






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the Legislature had spelled out where it was public pur- 






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pose, it might have got through the courts, but I think 






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there is another point beyond the lawyers ' point, sir, that 






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the General Assembly should really be required to put 






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the cards on the table of what it thinks it is doing. 






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I concede it may be obscure in its language at times, but 






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still some language ought to be used. 






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MR. CASE: I am not going to debate it. I 






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don't think it is necessary, not when you are incurring 








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indebtedness. It is necessary when you are lending credit, 




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which is much more nebulous, but when you are authorizing 




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bonds to be sold for a certain purpose, it has to say what 




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the purpose is. You just don't borrow ten million dollars, 




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period. You borrow ten million dollars to build a fine 




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arts building at the University of Maryland. 




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DR. BURDETTE: I am not sure that the Legis- 




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lature would have to do it that way. I would like to be 




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sure that we say it does. 




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MR. CASE: I don't think anybody in the world 




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would suggest that an act which would say the State shall 




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borrow ten million dollars, period, would be a valid law. 




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It has to say what it is for. 




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THE CHAIRMAN: Mr. Sayre? 




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MR. SAYRE: The word distinctly specified, I 




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think, would cover a valid point of Dr. Burdette, and it 




17 


was suggested in the model Constitution, and you are 




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after the specific objects of the indebtedness, isn't that 




19 


right, Dr. Burdette? 




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DR. BURDETTE: I don't recall the model. 




21 


That is the idea. 






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MR. SAYRE : If you simply inserted, to incur 
indebtedness for any specified, distinctly specified 
public purpose, would that not cover the point? 

DR. BURDETTE: That is acceptable to me. I 
would want it defined by someone like the Chairman of 
the Committee, who is a real authority on financial 
practices, as I am not. 

MR. CASE: I don't think you could get more 
specific than that. 

DR. BURDETTE: I am thinking of the public 
relations point, Mr. Chairman. 

THE CHAIRMAN: May I ask a question at this 
point? I would be a little concerned that the addition 
of such language might create a situation where counsel 
would be picking at all of the little flaws that you could 
^ conceivably find in the statute stating the purpose, and 
■*■' I would wonder and I would like the Chairman of the Com- 
mittee to comment on this, whether a provision in the 



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* Constitution which required that the act authorizing the 

bond issues state the public purpose would limit the 

21 

court to the public purposes so stated. 

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•*■ MR. CASE: I am sorry, Mr. Chairman. 

THE CHAIRMAN: Do you think if any language 
3 were added which required that the Legislature state 
^ the public purpose in the statute, and this were questioned 
5 in litigation, that the court would say it is limited 
" to the public purpose stated, and if it concluded that 

* the purpose stated was not a proper public purpose but 
» there was another public purpose, it couldn't go to the 

* other public purpose. 

MR. CASE: That is entirely possible. I can 



10 



11 think of an illustration where that might be true in the 

credit field. It is inconceivable to me that indebtedness 

13 which states the object of the borrowing wouldn't qualify 

14 or wouldn't have enough on the record so you would know 

15 whether it would qualify or not, but I think if you try 

16 to become more specific in the Constitution requiring 
IV something like this, you are going to breed more litigation 

18 like we have had under 34 from time immemorial. 

19 THE CHAIRMAN: Mr. Miller? 

20 MR, MILLER: Getting back to the point that 

21 Dr. Winslow was discussing, if it is conceded that the 
_S_t-3-te as ? matt?r of principle hgF_ al l — r ights — to borrc T . 



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et cetera, would it hurt if this sentence was set up in 
a way to say that the General Assembly or the State 
cannot borrow money, except for a public use? 

MR. CASE: Let me say this about that, Congress' 
man: The present unworkable Section 34 is written in the 
negative. This Section is written in the affirmative. 
We think it is a better approach. It is a matter of 
style, and it is a question of approach. We think the 
affirmative approach, what it can rather than what it 
cannot do is best . 

MR. MILLER: What apparently concerns our good 
professors is it is just stating a truism and not a 
limitation. 

MR. CASE: It is a limitation, as you read it 
in context, but it states it in an affirmative rather than 
a negative way. You see, you have got to think in terms 
of the history, as I tried to describe it. The State 
borrowed money originally without any provision in the 
Constitution. The Constitution of 1776 had nothing in it 
about money. You went ahead and borrowed and turned the 
bonds over to the railroads and canals, so that based on 



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that context, in that context and in that setting 
Section 34 came along to prevent that type of thing. Now, 
3 we have gotten into a much more sophisticated time and 
* people who are interested in the State and who want to 
5 know what the basic requirements are look at a piece of 
" paper, namely the Constitution. If they look at this, 
? which I hold in my hand, which is old 34, it means nothing 
° b ut a bunch of hogwash. The Section we are suggesting 

9 is a meaningful, clearcut draft of powers. 
10 THE CHAIRMAN: Mr. Sykes? 

MR. SYKES: Mr. Chairman, I am concerned with 
the point Dr. Winslow and Congressman Miller raise. 
13 One problem with the language as it is suggested is that 
+* there is no restrictive word, like only in it, even if you 

15 accept the affirmative method of statement, and I would 

16 think that it should read at the veryleast that the State 

17 shall have power to incur indebtedness only for public 
purpose and in such manner and upon such terms, et cetera, 

19 as the General Assembly may direct. 

20 MR # CASE: That wouldn't add anything. It says, 
1 for any public purpose. If it is for any public purpose 



12 



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it can't be for anything but a public purpose. 

MR. SYKES: I don't think so. I think the 
problem is that you have got this problem of the plenary 
power of the Legislature in the State,. even in the absence 
of any express statement here, or at least the possibility 
and I would think also that because of this problem of 
plenary State powers, the negative form of expression 
which would imply the recognition of those powers, and 
the use of the word except, which would definitely limit 
the Section to the positive results that the Committee 
wants to achieve would be the best method of drafting, 
and in order to make progress and bring the thing before 
the floor, I would move that the first sentence of the 
draft be amended to read as follows: The State shall 
incur indebtedness, except for a public purpose and in 
such manner and upon such terms and conditions as the 
General Assembly may prescribe. 

THE CHAIRMAN: Is there a second? 

MR. MILLER: I will second that. 

THE CHAIRMAN: Any discussion? 

MR. MARTINEAU: Mr. Chairman, I would like to 



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suggest to Mr. Sykes that he consider also including 
in that amendment the point that was raised by Congress- 
es man Miller and Dr. Winslow, that it be phrased in much 
the same language as the last sentence, that it be only 



5 by act of the General Assembly. I must say that although 



there is an implication in the second sentence here, or 



' in the third phrase, second sentence, that this can be 



done only by act of the General Assembly, the first 
sentence would seem to say the General Assembly can give 
the pov/er to anyone to create a State debt e I V70uld 
prefer to have it stated very explicitly that the State can 
incur a public indebtedness only for a public purpose and 
l* 5 only by act of the General Assembly. 

14 MR. SYKES: On that I would think that the 

15 first sentence can get overcumbersome . I think it should 

16 be limited to a statement of the general objects for 
1^ which the State debt can be created and the fact that 
1® the General Assembly is the agency. 

Now, in the mechanics, or in the later sentences 
the mechanics are spelled out, and I wouldn't think that 



2 * the suggestion would be foreclosed as a matter of substance, 



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but as a matter of drafting I would prefer the first 
sentence to be as I suggested it. 

THE CHAIRMAN: Can you give me that language, 
Mr. Sykes? 

MR. SYKES: The State shall incur no indebted- 
ness except for a public purpose and in such manner and 
upon such terms and conditions as the General Assembly 
may prescribe. 

DR. BURDETTE: May I make a suggestion? 

THE CHAIRMAN: Just a second, Dr. Burdette. 
The phrase, shall incur no indebtedness, would you accept 
shall not incur indebtedness? 

DR. BURDETTE: My thought was, shall incur 
indebtedness only. The first part of the sentence doesn't 
go with the second, but this is a style matter, and it 
will have to be a style matter. 

THE CHAIRMAN: Do you accept the change, 
Mr. Sykes? 

MR. SYKES: I don't think it makes any differ- 



ence . 



THE CHAIRMAN: Just so we know what we are 



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1 talking about. 

2 MR. SYKES: It is agreeable to me. 

3 THE CHAIRMAN: What is the language? 

4 MR. SYKES: That would now read, The State 

5 shall incur indebtedness only for a public purpose and 

6 in such manner. 

7 THE CHAIRMAN: Mr. Case, do yo u want to com- 

8 ment? 

9 MR. CASE: Well, I think, I don't know whether 
10 we are talking about words. I can't visualize that 

H this really does anything. 

12 DR. BURDETTE: Does it hurt you any, sir? 

13 MR. CASE: I don't know. What worries me is 
14- when amateurs start fooling around with a professional 

15 subject. 

16 DR. BURDETTE: That is why I relied on you 

17 for language. 

18 MR. CASE: That is why I am asking you rely 

19 on me, and that goes for Mr. Sykes, too. 

20 MR. CLAGETT: What difference would there be 

21 in the purport of language such as this, through the 



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1 General Assembly, and in such -- through the General 

2 Assembly only, and in such manner and upon such terms 

3 and conditions as it may prescribe, the State shall have 

4 the power to incur indebtedness for any public purpose. 

5 MR. CASE: In the first place, it is so cumber- 

6 some, I don't understand it, and what we are trying to 
V do here is to, in the first sentence, to get a clear 

8 concise statement that the State has the right to borrow. 

9 Nov; you talk, Mr. Sykes and my good friend, the professor, 
10 talk in terms of putting this in the negative. Let me 

H tell you why it is put in the affirmative. It is to 

12 some extent a public relations reason, but I think you 

13 have to think in terms of this kind of thing, this 

14 document being used by somebody other than just this Com- 

15 mission, and this Section will be used by bond attorneys 

16 and bankers throughout the country in the determination 

17 of what the State can do. Many States, many States in- 

18 eluding Georgia, to some extent Pennsylvania, cannot 

19 borrow and must finance their schools through authorities. 

20 in Pennsylvania this is done, in Georgis this is done, 

21 and when you go therefore to someplace like Moody's, and 

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talk about what your State can do, the first thing they 
say to you is, Well, can your State borrow or do you 
have to go through some authority to borrow like you do 
down in Georgia and up in Pennsylvania? This is the 
first thing they say to you. 

The reason I wrote this this way is so that 
when we go, whoever is bond counsel for the State and 
the State Treasurer goes up to see Moody's and they say, 
Where is your authority to incur general obligation 
bonds, you turn to 34, and you say, Right there it says 
the State shall have the power to incur indebtedness. 
That means the State can do it, you don't have to go 
through an authority to do it, et cetera. That was the 
reason. It is declaratory. It is declaratory of the 
existing law, but it is a necessary declaration in my 
judgment . 

MR. SYKES: If that is Mr. Case's concern, 
then I think Professor Burdette's language was better 
than the language I originally suggested and does do 
exactly that, without implying any limitations on the 
general residuary powers of the State, and expressly 






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1 limiting the State in a way that Mr. Case's Committee 

2 seems to think is desirable. The State shall incur in- 

3 debtedness only, et cetera, is a clear statement that 

^ the State has power to incur the indebtedness and a clearer 

5 statement of the intended limitation than even the Com- 

* mittee's own language. 

7 ! JUDGE ADKINS: I would like to ask, Mr. Chair- 

8 man, if there has ever been any attempt during the history 

9 of the State of Maryland to borrow on this so-called 

inherent power outside of the Article, Section 34, as it 

H previously existed. If not, it seems to me we are talk- 
is 

1^ ing about something that/pretty ephemeral. Has there ever 

13 been any attempt to exercise the general power of the 

14 State to borrow outside of old Section 34? 

15 MR. CASE: Before 1851. 

16 JUDGE ADKINS: I mean since 34. 

17 MR. CASE: No. This has been the restriction. 

18 JUDGE ADKINS: Since 34, since Section 34 was 

19 enacted in 1951. 

20 MR. CASE: 1851. 

21 JUDGE ADKINS: I know, 1851, it has been con- 



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sidered to be the only provisions under which the State 

p 

could borrow? 

3 MR. CASE: Exactly. 

MR. HARGROVE: Have we found under Section 34 
5 any real difficulty in this State borrowing money, when 
there was a definite limitation under 34? I thought 
Mr. Case said from the beginning we had a Triple A 
rating, which implies to me that the difficulty was 
imposed under 34. 

MR. CASE: Mr. Hargrove, when you talk about 
difficulty, as I tried to indicate earlier, four cases 
had to be taken to the Court of Appeals this year to 
■*• clarify various financing techniques that we tried to 

do and, for example, it held up the Port Authority for 
^ almost nine months, and while eventually we got the money, 
I think that is difficult, yes. 



7 

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16 



17 MR. HARGROVE: I thought that was the question 

of what a debt was. I was thinking in terms of the bond 

^ attorneys dealing directly with a public purpose. 

20 THE CHAIRMAN: Mr. Hargrove, I don't think 

there is any doubt that in the past fifty years there have 

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* been great difficulties encountered by the State and bond 

2 attorneys in working out appropriate methods of carrying 

3 out public purposes. Mr. Case has cited a number of them. 
^ There are many others, I think. 

5 Any further discussion? 

6 MR. CLAGETT: Mr. Chairman, is there any 

7 difference in the phrase, for a public purpose only, as 

8 distinguished from the phrase, for any public purpose? 

9 MR. CASE: Yes. 

10 DR. BURDETTE: Yes, sir. 

MR. CLAGETT: It seems to me there is, and it 



13. 
12 



seems to me that the language that we have here now is 



13 broader than the language that has been suggested by way 

14 of a mendment . 

15 MR. CASE: Who is the author of that? 

16 THE CHAIRMAN: It is Mr. Sykes ' motion. 

17 DR. BURDETTE: I suggested the words. 

18 MR. CASE: I would like to know just what the 
1^ difference is. 

20 DR. BURDETTE: The difference is this, as I 

21 conceive it. My theory of constitutional law -- 

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MR. CASE: The difference between only and any. 

DR. BURDETTE: Any means that it can borrow for 
public purpose, but if there is an inherent power, as I 
believe there is, it can also borrow for others if the 
courts change their doctrines, and the courts may change 
their doctrines, so that if we put in the language only 
for a public purpose, then they can change it only within 
the meaning they develop for public purpose, and they 
have to justify it as a public purpose. 

MR. CASE: You don't reach me, my friend. If 
it says any public purpose, I don't think the State could 
borrow for a private purpose. I don't believe the court 
would go for that. 

DR. BURDETTE: Not now , but I am not sure about 
a hundred years from now. 

MR. CASE: Let me tell you, the Committee as 
far as I am concerned at least, I am not Committee, but I 
did some work on it, wrote this to mean only or any, as 
the case may be. In other words, it is limited, the 
borrowing is limited to a public purpose. 

DR. BURDETTE: That is what I want to achieve. 



any 



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1 MR. CASE: I think that is what it does say. If 

it doesn't, you may be a better word surgeon than I am. 

3 This is what we are after. 

4 THE CHAIRMAN: Mr. Haile? 

5 MR. HAILE: Mr. Chairman, I too have had some 
experience in financing for county governments, and the 
language as presently written, in my judgment, carries with 

8 it the concomitant idea that when you say the State has 

9 power to borrow for any public purpose, that the court 

10 would state clearly that they have no power to borrow for 

11 any purpose which is other than a public purpose; and like- 

12 wise, that nobody in the State or for the State, no one in 

13 the Executive Department may borrow, except in such manner, 

14 or except by act of the General Assembly, so I am convinced 

15 that the present language is correct and proper. 

16 THE CHAIRMAN: You think it has test-tubelike 

17 clarity? 

18 MR. HAILE: Yes, I do. 

19 THE CHAIRMAN: Any further discussion? 

20 MR. HAILE: Also it will facilitate marketing 

21 of bonds, which is what we are concerned with. 



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THE CHAIRMAN: Mr. Sykes? 

MR. SYKES: I am impressed by the fact that the 
present language has been submitted to the banking com- 
munity and to a great many others , which any change in 
the language would not produce. I am also concerned that 
there be an authoritative expression that the substance 
of the present language is intended to reach the same re- 
sult as the amendment, and if the Chairman of the Committee 
would state for the record that his intention, the inten- 
tion of the Committee in drafting the existing first 
sentence is as Mr. Haile expressed it, then I would be 
perfectly satisfied with that legislative history and 
would not press the motion that I made. 

MR. CASE: This is the case. 

MR. SYKES: Okay. 

MR. CASE: This is the case. 

THE CHAIRMAN: Mr. Sykes? 

MR. SYKES: I will withdraw the motion. 

MR. MILLER: Mr. Chairman, I have great faith 
and confidence in the Chairman of the Committee, and he 
knows a great deal more about these things than I do, but 



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I still don't see why it is desirable to leave anything 
to possible court interpretation, because in my experience 
unfortunately, courts sometimes change their views. I 
would like to offer as an amendment, and this does very 
little change to the language; I would offer that the 
General Assembly shall have the power to incur indebted- 
ness only for any public purpose and in such manner, et 
cetera . 

That would at least get us on record on this 
point, and I can't conceive that the financial bond 
people would feel that we had greatly changed this. It 
is still an affirmative statement. I agree with Mr. Case 
it is desirable to have as much in the affirmative as 



we can. 



Mr. Sykes? 



THE CHAIRMAN: Do you accept the amendment, 

MR. CASE: He withdrew it. 

MR. SYKES : I withdrew the motion. 

THE CHAIRMAN: Has the seconder, consented? 

MR. MILLER: I was the seconder.. I thought 



he withdrew it . 



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1 MR. SYKES: This is a new motion. 

2 THE CHAIRMAN: Would you state again what your 

3 suggestion language is, Mr. Miller? 

MR. MILLER: I would amend, and the language 

5 is not entirely mine, thanks to my good advisor, here, 

6 but the General Assembly shall have the power to incur 

» indebtedness only for public purpose -- for a public pur- 

° pose, and in such manner and upon such terms and conditions 

* as the General Assembly may prescribe. 

10 THE CHAIRMAN: I would suggest to you tha,t that 
language puts you in exactly the dilemma that you had 
initially. It looks like you are putting a limitation on 

13 the General Assembly, not on anybody else. You don't say 

14 that the State shall have. 

15 MR. MILLER: Perhaps we started to change too 

16 many words; the State shall have that. 

17 THE CHAIRMAN: If you do that, you are back exact 

18 ly to the language that Mr. Sykes had suggested. 

19 MR. MILLER: Am I? 

20 THE CHAIRMAN: Yes, sir. 

21 MR. MILLER: I will offer it if he doesn't want 



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THE CHAIRMAN: You want the same motion, you 



mean? 



MR. MILLER: I will offer the motion as modified 
that the State shall have the power to incur indebtedness 
only for a public purpose. 

THE CHAIRMAN: That is slightly different from 
his. He left out the words, have the power. He had, 
The State shall incur indebtedness only for a public 
purpose . 

MR. MILLER: I prefer that. 

THE CHAIRMAN: Is there a second? 

DR. BARD: Second. 

THE CHAIRMAN: Is there any further discussion 
of that motion? Are you ready for the question? 

MR. CLAGETT: Question. 

THE CHAIRMAN: I would like to make a very 
brief comment about this sentence, if I may, before you 
vote . 

I think this is an instance where we can per- 
haps be too slavish in following the precept that if the 
Constitution doesn't put a limitation, that the State has 



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the power . It seems to me that the sentence is stating 
very succinctly, very cleary and very plainly what all of 
us, and I don't think there is any disagreement on prin- 
ciple, are trying to say. I think Mr. Haile has stated 
it very well, and I don't believe we can improve it by 
adding two words and taking out one phrase. 

Any further discussion? 

MR. CLAGETT: Question. 

THE CHAIRMAN: Are you ready for the question? 
All those in favor of the amendment, which deletes the 
words, have the power, and inserts the words, only and 
an, signify by a show of hands. Contrary. The motion 
is lost, 2 to 16. 

Any further discussion about the first sentence? 

JUDGE ADKINS: This is a very minor point, but 
hasn't our practice been to say that the General Assembly 
may by law prescribe? 

THE CHAIRMAN: Yes. 

JUDGE ADKINS: Should not the words, by law, 
be inserted between may and prescribe? 

THE CHAIRMAN: The purpose of that, Mr. Case, 



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1 was to indicate that it is not a power of the General 

2 Assembly that is independent of the veto? Do you concur? 

3 MR. CASE: I would have no objection to that. 

4 THE CHAIRMAN: Any objection? Then we would 

5 add the words in the third line after, General Assembly, 

6 the words, by law. 

7 Any comment or question as to the second 

8 sentence beginning in the third line, and concluding near 

9 the end of the eighth line? Mr. Gentry? 

10 MR. GENTRY: Just with the language of it. 

11 In the first phrase, before the semicolon, which said, 

12 All such indebtedness, meaning this indebtedness that 

13 we just previously said could be in the manner and on the 

14 terms and conditions as they may prescribe, then we say, 

15 All such debt has this irrevocable pledge and taxing power 

16 and then we say, unless such debt. If it has to, you have 

17 used the word such twice , unless such debt has this ir- 

18 revocable taxing power, then it is not to be considered 

19 indebtedness of the State. It gets twisted. 

20 MR. CASE: No, it doesn't. Perhaps I can help 

21 you by explaining to you what this sentence says and what 



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1 it does, because this of all places in here is truly the 

2 place where we have words apart, which are known by 

3 bankers, investment bankers, et cetera , the words which 
* I am talking about are, quote, an irrevocable pledge of 

5 the full faith and credit and unlimited taxing power of 

6 the State. 

7 Those words are found on every general obliga- 

8 tion bond prospectus or advertisement that you will see 

9 in the newspapers, or receive from your banker. They 
mean, in effect, and the Court of Appeals has recently 

H said that they mean, in the MIDFA case, which is referred 

*2 to in the memorandum, a pledge of everything you have got. 

13 This is it, boys. This is all she wrote, and this is the 

14 way to express it. This is the way bankers express it. 

15 That is what that means. 

16 When you come to the second section here we 

17 are dealing with that very troublesome question that we 

18 talked about earlier, namely, what is the meaning of the 

19 word, indebtedness, because we havehad all these cases, 

20 when the Susquehanna Bridge was built, you had a case, 

21 Lexington Market Authority, you had a case, Port Authority 



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1 a case, three cases this year, and what you get into here 

2 is that there are a lot of times where the State may 

3 want to set up other kinds of financing techniques which 

4 are not general obligation bonds and which should not be 

5 j hedged with these restrictions, such as revenue bonds, 
for example. The best known example, of course, are our 

7 crossing bonds. 

° We have had to go to the court every time to 

have the court tell us that these were not debts and 
that therefore you didn't have to pledge the State's 

H credit, and you didn't have to have the fifteen -year 

12 ! limitation. You didn't have to have all the rest of it. 

13 Now, what this clause after the semicolon does is, it 

14 j removes for all time, hopefully, this area of contentious 

15 litigation, because unless the act uses the magic words, 

16 bear in mind the words, irrevocable pledge of the full 

17 faith and credit and unlimited taxing power, are magic 

18 words, like paid to the order of on a negotiable instru- 

19 i ment. Unless those magic words are used, then whatever 

20 the Legislature does in setting up these other authorities, 

21 they don't create a State debt, and this Section doesn't 



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apply. 

MR. GENTRY: The words, an indebtedness of 
the State, the last words of the sentence, you are only 
talking about a general obligation bond? 

MR. CASE: That is right. 

MR. GENTRY: Elsewhere, where you use, created 
on behalf of, State debt, all the times it is used, it 
is a general obligation? 

MR. CASE: That is all this Section deals with. 
That is all it deals with. 

THE CHAIRMAN: As a corollary to that, there 
is no limitation at all on the issuance of such things 
as a revenue bond, for instance. 

Mrs. Freedlander? 

MRS. FREEDLANDER: I, too, hesitate to ques- 
tion Mr. Case on this, because I know this has been worked 
over carefully, but I would like to question the fact, 
does an act of the General Assembly purport to authorize, 
or does it in fact, authorize? Do we need the word, pur- 
port, because an act either authorizes or it doesn't 
authorize . 



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1 THE CHAIRMAN: Mr. Case? 

p 

MR. CASE: Well, the word, purport, I suppose 

3 was our idea of an act which might be construed to 

create a State indebtedness, or somebody might say that 

5 it would create a State indebtedness, because a State 
agency is permitted to borrow money. 

MRS. FREEDLANDER: If you have an act that 



8 authorizes the creation of it and includes the irrevocable 

pledge, is it not in fact, an act? 
10 



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MR. CASE: It is an act, but an act purporting 
to do this. In other words, suppose you had an act 
which said in effect, the State shall incur indebtedness 
13 in the amount of ten million dollars and issue in evidence 
l** thereof its general obligation bonds, which again are 

15 words of ours, general obligation bonds, and further 

16 suppose that it said, these bonds shall be serviced by 
l r/r the tax extracted from the shellfish industry, and that 

they shall last for fifty years. 

That would be an act purporting to create a 
general obligation indebtedness, but because it did not 



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contain the magic words, the State would not be obligated 

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1 as on a general obligation indebtedness, even though the 

2 Legislature had in so many words said that it would, 

3 because it didn't include a pledge of the full faith 

4 and credit and unlimited taxing power. 

5 MRS. FREEDLANDER: You are saying that the act 

6 must include this pledge. Therefore, the act is an 

7 authorization based on the inclusion of such a pledge, 

8 because the Constitution is requiring such a pledge in 
-'■ such an act. 

MR. CASE: If it is to be a general obligation 

H bond in fact, it must include the pledge, and if it 

12 doesn't include the pledge, then it may be something, but 

13 it is not a general obligation bond. 

14 THE CHAIRMAN: Even though: the statute purports 

15 to call it such? 

16 MR. CASE: That is right. 

17 THE CHAIRMAN: Dr. Burdette? 

18 DR. BURDETTE: I would like to revert to Mrs. 

19 Freedlander 's question, to the Chairman of the Committee. 
Mrs. Freedlander is talking about a question of style, 
and as the Chairman of the Committee on Style, I should be 



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very hesitant to bring up in that Committee changes of 
style language if they would affect the substance. 

3 Mrs. Freedlander , to my mind, is not talking 

about removing the magic v7ords, which nobody wants to 
5 remove, but rather talking about the awkward language, 
purporting to authority, and I am wondering if one can 
instead of saying, purporting to authorize, say, 
authorizing the creation, because I would call to the 
attention of the Committee that if one later goes on and 
wants to be perfectly consistent, and after the comma 
one would say, the obligation so purported and not so 
authorized, because the word, purport, impugns the 

^ authorization. I don't believe the Committee really 

14: intended to do that. 

15 THE CHAIRMAN: I think it did intend to do 

16 that. 

17 MR. CASE: That is right. 

18 DR. BURDETTE: If they want to impugn the 

19 authorization, they should use the language purported, 
shall not be considered- an indebtedness of the State. It 
almost implies it has been authorized. I am asking can we 



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help to clean up language a bit. This is terribly 
awkward language, but maybe it is necessary. 

THE CHAIRMAN: In line 7, the second suggestion 
would be that between, so, and authorize, you would insert 
the words, purported to be, so it would read, the obliga- 
tion is so purported to be authorized? 

DR. BURDETTE: That makes it worse. 

THE CHAIRMAN: I understand. 

MR. CASE: It is surplusage, but it doesn't change 



it. 



in here? 



DR. BURDETTE: Do we have to have, purported, 



MR. CASE: Yes. 

DR. BURDETTE: In the first part? 

MR. CASE: Yes. What you are doing here is 
contemplating the General Assembly trying to do this, 
and failing it. Do you follow me? 

DR. BURDETTE: I see, but then from 7 to 8, 
one isn't crossing the — 

THE CHAIRMAN: Dr. Burdette, you said, but I see 
but then in 7 to 8 , and we don't have the lest of your 



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1 thought. 

2 DR. BURDETTE: In 7 and 8, the language used 

3 is that of an accomplished authorization. It is an incon- 
sistency with the Line 6 part which is an attempted or 

5 purported authorization. 

MR. CASE: But note the difference in language. 
The purported deals with indebtedness, which is the 
word of art in this Section. The thing accomplished is 



the issuance of an obligation. An obligation doesn't 

necessarily, isn't an indebtedness and indeed wouldn't 

be an indebtedness under this. That is exactly the reason 

12 for this. 

13 THE CHAIRMAN: Mr. Case, may I suggest language 
^ that might meet both? In Line 6, if you took out the 

15 language, purporting, and let it read, unless the act 

l^ of the General Assembly — you have to take out purporting 

1^ to and change authorize to authorized -- unless the act 

1 Q of the General Assembly authorizing the creation of a, 

1^ instead of such indebtedness, includes such an irrevocable 

pledge, the obligation shall not be considered to be an 

indebtedness of the State. 



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1 MR. CASE: I would hate to do that because the 

2 word, such, you see ties into the sentence above that, 

3 such indebtedness. We are talking about general obliga- 

4 tion bonds. I don't see that it adds anything. I don't 

5 think it adds anything. 

6 MR. BROOKS: Could you say, this indebtedness? 

7 THE CHAIRMAN: The point I made, when you 

8 sa y> such indebtedness, you are referring back to an 

• indebtedness of the State and in the first clause in Lines 
5 and 6, you are referring to the possibility that there 

H may be an indebtedness, but not one of this character, 

** not such an indebtedness, so that you would then say, if 

13 you followed my suggestion, unless the act of the General 

14 Assembly authorizing the creation of an indebtedness 

15 includes such an irrevocable pledge, the obligation so 

1^ authorized shall not be considered an indebtedness of the 

1 7 State. 

18 MR. CASE: To me, it doesn't add anything. 

19 THE CHAIRMAN: It would authorize an indebted- 

20 ness that is not an indebtedness of the State, a revenue 

2 1 bond, for instance? 



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1 MR. CASE: We call that an obligation. 

2 MR. SYKES: Mr. Chairman, I think the point 

3 can be met, consistent with the Committee's desire, by 

4 saying, unless the act of the General Assembly authorizing 

5 the creation of an obligation includes such an irrevocable 

6 pledge, the organization so authorized shall not be con- 
V sidered an indebtedness of the State. I think that would 
8 clear it up and avoid clumsiness. How does that strike 

Mr. Case? If you make a distinction between an obligation 

10 and a debt. 
1* MR. CASE: To me, it is not clumsy. To me, it 

12 is perfectly clear. What you are doing is just moving 

13 words around. 

I* MR. SYKES: There is a distinction between 

15 an obligation and indebtedness, and the only way you 

16 can create an indebtedness is by the magic word , and you 

17 authorize an obligation, not purport to authorize it, and 

18 that obligation doesn't contain the magic words, then it 

19 is not an indebtedness. 

20 MR. CASE: But you may purport to authorize an 

21 indebtedness, but unless you use the magic words, you 

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1 don't do it. That is the whole point.. You may purport, 

2 just as the example I gave you , you may purport to 

3 authorize the general obligation bonds, but you may neglect 
* in that act to put in the magic v7ords. If you don't put 

5 in the magic words, you purported to authorize indebted - 

6 ness but the Section says you haven't done it. All you 

7 have done is authorize an obligation. 

8 MR. CLAGETT: Will you reread your language, 

9 Mr. Chairman? I think we are quibbling. 

10 THE CHAIRMAN: Mr. Sykes ' language meets the 

H objection to mine. I will read his. Unless the act of 

** the General Assembly authorizing the creation of an 

13 obligation includes such an irrevocable pledge, the 

14 authorization so authorized shall not be considered an 

15 indebtedness of the State. 

16 MR. SYKES: I would move that. 

17 MRS. FREEDLANDER: Second. 

18 THE CHAIRMAN: Is there any discussion? Mr. 

19 Case, do you want to comment any more? 

20 MR. CASE: Vie 11, unless I had the words 

21 laid down so that I could analyze them carefully -- 



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1 THE CHAIRMAN: The change is very little. 

2 MR. CASE: It sounds pretty substantial. 

3 THE CHAIRMAN: You can mark it on there. In 

4 Line 5, unless the act of the General Assembly, take out, 

5 purporting to authorize, and insert the word, authorized, 

6 and then in the same line, take out the words, such in- 

V debtedness, and put in, an obligation; and it would read, 

8 unless the act of the General Assembly authorizing the 

9 creation of an obligation so authorized shall not be 

10 considered an indebtedness of the State. 

11 MR. CLAGETT: Question, Mr. Chairman. 

12 THE CHAIRMAN: Wait just a second. I want to 

13 give Mr. Case an opportunity to think that over. 

14 MR. CASE: Well, you see the trouble is that 

15 what we were driving at was a situation where the General 

16 Assembly might seek to authorize a bond but was refusing 

17 to go the whole hog. That is why we used the words, such 

18 indebtedness, because up until now, we have been talking 

19 about G.O. bonds. 

20 THE CHAIRMAN: Wouldn't that situation be em- 

21 braced within the language, as would also the other 



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* situation where they actually authorized the revenue bond, 

2 for instance? 

3 MR. CASE: To authorize a revenue bond, 

* wouldn't -- 

5 THE CHAIRMAN: If the Legislature purported 

6 to authorize the issue of a general obligation bond, that 

7 would be an act authorizing the creation of an obligation. 

8 It would noqbe an act authorizing the creation of an in- 

9 debtedness. 

MR. CASE: I must confess, to me it doesn't 

H add anything. 

12 THE CHAIRMAN: Any further comment? Any fur- 

13 ther discussion? Are you readyfor the question? 

1 4 MR. CLAGETT: Question. 

15 THE CHAIRMAN: The question arises on the amend 

16 ment to change the language in Lines 5, 6 and 7, so that 

17 the second clause of the second sentence would read, Unless 

18 the act of the General Assembly authorizing the creation 

19 of an obligation includes such an irrevocable pledge, 
the obligation so authorized shall not be considered an 

21 indebtedness of the State. 



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All those in favor, signify by saying Aye. 
Contrary, No. The Ayes have it. 

Any question or comment with respect to the 
third sentence, beginning at the end of Line 8? 

DR. BARD: I have a question, not a comment. 
I am naive in this particular area, Mr. Case. Will you 
explain to me, for example, if, let us say, the Kennedy 
toll road, if it did not bring in enough money, let us 
say, in a particular year, woulc] under this sentence 
here, would this mean that if the indebtedness could not 
be paid as a result of this, the first revenues thereafter 
received applicable to the general funds of the State -- 

MR. CASE: That is a very good question, Pro- 
fessor. It illustrates and highlights some of the fine 
things that you get into. In the first place, the 
Kennedy Expressway is financed by an issue of revenue 
bonds, so if it were done under Section 34, as we are 
talking about, which has now been amended, it would not, 
or it would have been a, quote, obligation, unquote, of 
the State, but not having the magic words , it would not 
have been a general obligation bond, and those bonds would 



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1 have said on their face that they are payable only from 

2 the tolls. Hence, if the bond annuity generated by the 

3 tolls was deficient, that is too bad. The State doesn't 
put up a nickel. Now, generally, I might add that in 

5 these cases the Legislature, where it does not authorize 

6 a pledge of full faith and credit and unlimited taxing 

7 power, will state on the face of the bonds that full 
faith and credit of the State is not pledged, is not, 

9 n-o-t, pledged, so that the fellow who buys that obligation 

10 knows that if enough cars don't go across, they are going 

H to have to look elsewhere. 
1 Incidentally, you might be interested to know 

13 that the Kennedy bond issue, which is due in 2001, will 

14 be paid off in ten years' time. 

15 THE CHAIRMAN: Mr. Gentry? 

16 MR. GENTRY: A question on the debt service 

17 provisions in Line 10 and 15. You said, installments of 

18 principal. You have already used the word, timely, and 

19 I am wondering why you added, installments of principal. 

20 Would not the same provision apply if the bond was at 

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* MR. CASE: This involves the unique feature 

2 of public finance, Jirn. Generally speaking, when your 

3 company, for example, issues bonds, they are term bonds, 

* and that is to say, they would be in fifteen or twenty- 
5 five years or if the Telephone Company issues bonds, 
» some are due in twenty-five years. Municipal bonds are, 
• generally speaking, not term bonds. They are what we 

8 call serial maturity bonds, and there are installments 

9 coming due every so often, usually on a yearly basis; 
10 and it is for that reason that the word, installment, is 
H used, and of course, timely means that you have got to 
1^ pay the installment when it is due. 

13 MR. GENTRY: Doesn't there come a time at 

14 maturity when the whole of the principal then remaining 

15 unpaid is due? 

16 MR # CASE: That is just another installment. 

17 That is the last installment. 

18 THE CHAIRMAN: Mrs. Bothe? 

19 MRS. BOTHE: Dr. Bard used an unfortunate example 

20 and I am not going to try to use one, but where you have 
a G.O. bond, I would like to know, for instance, what the 



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* general funds of the State that would be first applicable 
to the payment of it would be. Would we have to take the 

3 money from the school funds, or would we have to take it 
from Welfare? 

5 MR. CASE: You take it from anything. It is 

6 any funds that are not specifically dedicated, the first 

7 call. 

8 MRS. BOTHE: When you say, not specifically 

9 dedicated, you mean not appropriated to a specific pur- 
10 pose by the Legislature? 

MR. CASE: And dedicated by the Legislature to 
that purpose. 

13 THE CHAIRMAN: As, for instance, gasoline tax 

■" dedicated to some other bond. 

15 Mr. Mindel? 

16 MR. MINDEL: I would like to ask if you have 

^ a right of redemption in the bonds, would the word, install 

ment, include the right of redemption, if you can conclude 
your bonds at an earlier date? 

MR. CASE: Yes, I think so. Installment would 



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1 feature. 

2 MR. MINDEL: You think that covers it? 

3 MR. CASE: Yes. 

4 THE CHAIRMAN: Dr. Burdette? 

5 DR. BURDETTE: I am wondering, Mr. Chairman, 

6 if the Chairman of the Committee would accept for a little 

7 clearer English, Line 13, the words, that are, after re- 

8 ceived? 

9 MR. CASE: What do you want to do now? 

10 DR. BURDETTE: I am trying to smooth the 

11 English so that even a high school student can find out 

12 what the sentence means. 

13 MR. CASE: I have got news for you. High 

14 school students aren't going to be involved with this 

15 Section. 

16 DR. BURDETTE: I am looking only at pure 

17 English of it. 

18 MR. CASE: Let's put it this way. It wasn't 

19 written for them. 

20 DR. BURDETTE: I would like to write it both 

21 ways, if possible. Possibly, received applicable, is an 



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1 awkward way of saying it. I would think the words, that 

2 are, should go between, received applicable. Well, that 

3 is a very funny expression, just in pure English. The 
* Comptroller shall set apart from the first remnants 

5 thereafter received that are applicable. 

6 THE CHAIRMAN: Mr. Case, do you follow? -Line 

7 13 between received and applicable, insert the words, 

8 that are? 

9 MR. CASE: He is nit picking again. I don't 
know whether you want to sit here and nit pick or not. 

11 THE CHAIRMAN: There would be a little more to 

12 it. than this, because he is the Chairman of the Committee 

13 on Style but dealing with a Section such as this, I am 
1^ sure that Committee would be very reluctant to make any 

15 changes in language. 

16 MR. CASE: I am on that Committee, too. I 
1^ won't let him make any. 

1 8 THE CHAIRMAN: Do you have any objection to 

19 the language? 

20 MR # CASE: Yes, I think it should stay exactly 
the way it is. This is written by one of Baltimore's best 



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bond counsel, not me, and checked over with a lot of 



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people and everybody understands it. 
3 THE CHAIRMAN: Dr. Burdette? 

DR. BURDETTE: I don't insist. I think it 
5 hurts the symmetry of clear, straightforward English. 

THE CHAIRMAN: Judge Adkins? 



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7 JUDGE ADKINS: I have a caveat here to the 



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use of the term, Comptroller. We have eliminated the 
Comptroller as a constitutional officer subject to, I 
gather, further consideration between Mr. Case's Com- 
mittee and my Committee. I wonder if maybe that ought 
to be left open for the results? 

MR. CASE: It is left open in substance. 

14 JUDGE ADKINS: Comptroller might not be the 

*5 right fiscal officer. 

16 THE CHAIRMAN: We are putting the word in 

^ brackets to flag it for later action. Any further com- 

^ ment on this sentence? 

The next sentence, beginning on Line 15, All 
State indebtedness shall mature within twenty-five years 



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1 Any questions? 

o 

c DR. BARD: I was present, Mr. Chairman, when one 

3 of the bond officials said he thought twenty would be 

* better. Will you explain why you finally hit upon 
5 twenty-five? 

" MR. CASE: You remember at the meeting in 

' Mr. Smith's office, when we had all the investment bankers 

° and commercial bankers present, there was not complete 

* unanimity of opinion on that point, but 1 think that most 
10 everybody said twenty-five years, they thought, would be 

1 all right. After that we went to Moody's. We went to 

12 

New York and talked to people up there, and the advice 

13 we got at that meeting was that twenty-five would be 

1^ perfectly okay, and that really it wasn't so much the lengtn 

15 of the maturities as it was the use of the magic words, 

16 and the sentence that has just been passed, where it is 

17 the first call. 

18 THE CHAIRMAN: Mr. Sykes? 

19 MR. SYKES: I would like some clarification 
2® on when the indebtedness is incurred. 34 says time of 

contracting the same, and ycu have changed the language. 



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MR. CASE: That is a good question. The word, 
incurring indebtedness, has been subject to many decisions 
of the courts, Melvin, and it means the date of the bond, 
so that, and generally speaking, this will be on an even 
date, such as October 1. Those bonds will be authorized 
before that time, and generally speaking, will be delivered 
after that time, but neither one of those times is the 
date that the debt was incurred. The debt is incurred on 
the date that is stated on the bond, and that is the 
time that the interest begins to run. It is a word that 
is more precise in the issuance of public securities than 
is found in present Section 34. 

MR. MINDEL: Mr. Chairman, Dick, I think it 
would be interesting for the Commission to know that the 
Legislature authorizes some municipalities or counties 
to have bonds, say for thirty, I think, isn't forty the 



maximum? I think it would be interesting to know why 
the State limits itself to twenty- ifve years, where some 



of the municipalities can have forty-year bonds. Can 
you tell us something about that? 

MR. CASE: Baltimore County is the best example. 



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* On one of the forty-year bonds we have, they have some- 

* where in the neighborhood of fifty or sixty million dol- 

3 lars of metropolitan district funds which are forty years. 

* They scaled them down recently. Most of the school bonds 
5 throughout the State are issued on a thirty-year basis. 

" This County that we are in right here has about 85 million 
^ now, 90 million of school bonds outstanding. They are 
° all thirty-year bonds. Montgomery has most of its bonds, 
it has next to Baltimore the largest amount of G.0.!s 
out, and most of those are thirty years. The reason is 



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1 that it is felt that a capital improvement, school build- 

ings, generally speaking, is what we are talking about in 
13 the counties, will last about thirty years, and the idea 
^ is that the obligations should run serially over the life- 
13 time of the capital asset, the funds of which were used 
16 to build it. 

- The fifteen-year -- let's start at one again -- 

1® the fifteen-year business is purely an historical 

anachronism found in Section 34. I guess it was back in 
1851, incurring indebtedness for fifteen years was looked 



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Mind that bonds weren't issued at that time 
for capital improvements as we know them today. They were 
issued to turn over to the railroads and the canals and 
by them sold on the open market. I suppose that a fifteen' 
year debt, looking at it from that standpoint was pretty 
long, but when we came along to the modern era of 
financing, bankers and investment people decided that the 
way to determine the maturity of a bond issue should be, 
give, it some relation to the capital asset that was 
built as a result of the issuance of that bond issue. 
We chose twenty-five. It is a judgment figure, simply 
because we were told that it was a safe figure, and will 
give the State about a hundred per cent more flexibility 
in its financing. 

MR. CLAGETT: Mr. Chairman, then I read the 
words in Line 15, All State indebtedness to be restricted 
to State indebtedness and would not be applicable to 
indebtedness of municipalities or other local subdivisions 

MR. CASE: That is correct, not only that, 
but it would not be applicable to any obligation which 
did not carry the magic words. 






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1 THE CHAIRMAN: Any further question on this 

2 Section? 

3 MR. SAYRE: When you say Section -- 

THE CHAIRMAN: I am sorry, this sentence. There 

5 is going to be considerable discussion with respect to 
* the last sentence. Let's break for about ten minutes. 
« There will be some coffee. 

° (At this time a short recess was taken.) 

9 THE CHAIRMAN: May we resume our places, please. 

10 As the Committee has pointed out in its Report, 

its Report deals specifically, and its recommendation, 
with respect to Article III, Section 34, deals only with 
13 State indebtedness, but to some extent the same principles 
1^ may be applicable in connection with the provisions of 

15 the Constitution as to indebtedness to be incurred by 

16 local subdivisions, which has not yet come before us. 
1^ That might be particularly pertinent in connection with 

the last sentence. I want to call your attention to the 
fact that Page D attached to your Report, which is a print 
of Article XI, Section 7 , is a print of that Section as 



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1 amendment proposed by the Legislature to be voted on 

2 next November. That is, not the present provision, or the 

3 provision under which the City of Baltimore has been 

4 operating for many years. It does not have the detailed 

5 limitations and restrictions. Neither does your red book, 

6 because the Section in the red book is the Section as it 

7 will be amended if the amendment is approved in November. 

8 If you want to get the provisions of Article 

9 XI as they now exist, you will have to look at the 

10 published Constitution in the Annotated Code. 

11 I would also like to suggest to you that the 

12 problem presented by the last sentence is a very impor- 

13 tant one. The times today are different, perhaps, than 

14 they were in 1850 or in 1840, but somewhat the same 

15 problems exist in that then there were great pressures 

16 on the State and local subdivisions to extend credit or 

17 lend the credit to railroads, turnpikes and canals. 

18 Today you have the same sort of pressures on the State and 

19 local subdivisions particularly to extend credit for 

20 various types of urban renewal projects and similar project*; 

21 Inasmuch as the transcript of this hearing is 



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really the only record of our debate on this, I would 
sincerely hope that the comments concerning this last sen- 

3 tence and the discussion is full and complete. 

Are there any questions as to the last sentence, 

: beginning on Line 17, and keep in mind, as Mr. Case pointed 

out to you, that the sentence in Page B, attached to the 

Report, which is the form recommended by the Committee, 

is different in that it is somewhat shorter than the same 
9 



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sentence on Page G. 

Mr. Sykes? 

MR. SYKES: Just a technical point. In the 
last line of the version of Page G, I am sure that the 
*•* Committee did not mean to require the General Assembly to 

"*■ limit the loan to a period of twenty-five years, but 

rather to limit it to a period of not exceeding twenty 
five years. 

MR. CASE: Let me say for further clarafica-- 
tion, on G, the words in the brackets, of State assets, 
^ should be stricken out. When I handed this to John, this 
is my way of indicating to my secretary that matters 
come out, and I forgot to tell him that. That reallyhasn't 



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any place there; limiting any loan or extension of State 
credit to a period of not exceeding. That would be right. 
3 MR. SYKES: Not exceeding? 

THE CHAIRMAN: You don't want, it, o-f? 

5 MR. CASE: Of not exceeding. 

6 THE CHAIRMAN: To a period not exceeding? 

7 MR. CASE: Period of not exceeding. 

8 THE CHAIRMAN: The point is, you don't need it, 
* o-f. It should be period, not exceeding. You don't need 

the word , o-f. 

11 MR. CASE: Okay. Very well. That is right, 
XCr Melvin. 

12 MR. SYKES: The other question I was going to 

14 a sk was whether anyone, and if so who , is going to deal 

15 with the question of whether there should be analogous 

16 limitations on municipalities? 
IV THE CHAIRMAN: The Committee on Local Subdivisions, 

1 8 Political Subdivisions, Mr. Clagett's Committee. 

19 MR. SYKES: I didn't sec it expressly dealt with 

20 in the draft. 

21 THE CHAIRMAN: It hasn't been as yet. 



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1 MR. CLAGETT: I would like to ask whether or 

2 not the word, corporation, in Line 18, includes municipal 

3 corporations . 

4 MR. CASE: It has never been held to. 

5 MR. CLAGETT: Would it include authority, an 

6 incorporated authority for special service functions? 

• MR. CASE: It has never been passed on by the 

Court of Appeals. The State never tried to do this. I 

9 would assume it would. 
10 MR. CLAGETT: These questions are for informa- 

tion as well as a matter of record. I don't want to 
debate your answers. I just want to get the answers . 
13 Xhe next question I have is, Mr. Chairman, in- 

1^ the event that a local subdivision, regardless of which 

15 ne defaulted in its G.O. obligations, could that indebted 

16 ness be picked up by the State as a G.O. obligation within 
1? the restrictions prescribed in this last sentence of your 

1 8 draft? 

19 MR. CASE: If the State guaranteed it? 

20 MR # CLAGETT: No, not if it had guaranteed it, 
^ but if on default and in order to save the defaulting 



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subdivision, could the State step in and make it a 

2 general obligation? 

3 MR. CASE: I think it probably could, but 

that wouldn't come under this Section. It would come under 

5 the first sentence. There the State would go ahead 

6 and incur the indebtedness, issue bonds, and pay them off. 

7 MR. SAYRE: There is nothing to prevent it, 

8 though, from coming under this Section if the General 
* Assembly so decided, is there? 

MR. CASE: No. I think that is probably right; 
assuming now it is public purpose. 

MR. SAYRE: Yes.' 
13 THE CHAIRMAN: Mr. Case, let me as you a ques- 

■^ tion then with repsect to the last sentence. 

15 MR. CASE: Which is as I think it should be. 

16 THE CHAIRMAN: Is it the intention of the Com- 

17 mittee that the last sentence is referring only to 
1° private individuals, associations, or corporations? 

MR. CASE: It is to any individual, association, 
or corporation, as I interpret it. Of course, that language: 
has been in the Constitution since 1851, any, unless the 



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1 public purpose is served. In other words, the State 

credit could be given to a private corporation under this 
3 if a public purpose is served. 

THE CHAIRMAN: That is not my question. Is 
5 it intended by the Committee that the last sentence begin- 
° ning in Line 17 could apply to a political subdivision? 

7 MR. CASE: I don't see why not. It would be 

8 a corporation. If a public purpose were served, I think 
* the State could lend its credit. 

THE CHAIRMAN: Then I think we ought to point 

out, because I am not sure that it is entirely clear to 

12 

the Members of the Commission, that the gift or loan of 

assets or credit under this last sentence is not subject 
** l to the limitations in the preceding part of the Section. 
*5 It is not intended to be. 

16 MR. CASE: Maybe it would be helpful, Mr. 

11 Chairman, because in my presentation I said that I would 

18 come back to this Section with somewhat more of a detailed 

19 explanation, if you would permit me, or if the Commission 
would like me to do so, to restate briefly the problem 
that is involved here and the areas of resolution that 



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have been determined by the Committee. 

THE CHAIRMAN: I think that would be helpful. 

MR. MILLER: If you do that, would you explain 
which one of these versions you are recommending? 

MR. CASE: I will, indeed. 

The problem here starts with existing Section 
34, which says in effect, and if you will look at your A 
line, you will see, at Line 7, the credit of the State shall 
not in any way be given or loaned to or in aid of any 
individual, association, or corporation. 

That is all we really are talking about here 
is those few words, and we call that the credit clause 
of Section 34. The credit clause has not been before the 
Court of Appeals very often. Actually, only in two cases, 
which have dealt with it. One of them I have already 
discussed. That is the case. in which Johns Hopkins 
needed some funds for its Engineering Building, and the 
State authorized a bond issue to raise funds and money 
to be used in part for the construction of that building. 
The argument was made there, I might add by now Circuit 
Court Judge Harrison L. Winter, that this was a lending of 



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the State's credit, and therefore violated the credit 
clause, because it was a lending of credit to a corpora- 
3 tion, but as I have already indicated, the Court of 

Appeals said No, that even though you used your credit to 
go out and get the money, that what you really did was 
turn the money over to the Hopkins and cash is not credit, 
and hence this is perfectly all right. 

The second case that involved this, and the 
only other case on a State level which directly involved 
the credit clause as such was a case which was before 
the Court of Appeals at the last term. In this particular 
case, the act of the Legislature said, in effect, that 
a corporation, the public corporation should be established, 
and that that corporation should have the power to 
^ guarantee the payment of mortgages which would be made 
^■" to local political subdivisions for the purpose of 
^ erecting buildings for industries' use. Typically, it 
18 is the old FHA gimmick. A party borrows money from a 
* 9 bank, builds a building with the money, leases the build- 
ing to an industry. The money that is paid by way of 
rental by the industry to the county is used to pay off 



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the bank. The bank is securing this because the act fur- 
ther said that the full faith and credit of the State 
should be pledged to this undertaking. That is to 
say, if the industry failed to pay and hence the county 
could not pay, that the full faith and credit of the 
State would be used to meet this obligation. 

This act, the pledge of the full faith and 
credit, was the point of inquiry before the Court, and it 
was argued in the alternative that, first, the act really 
didn't pledge the full faith and credit although it said 
so in so many words, and secondly, that if it did , then 
it was invalid as in violation of Section 34, which says 
that you can't pledge the full faith and credit to a 
corporation . 

The Court of Appeals ducked the main issue, 
unfortunately for our discussions this morning, holding 
in effect that the act did not, in effect, pledge the 
full faith and credit and therefore the authorities' 
attempt to do so was a nullity and void, but in the 
preparation and argument of this case, it was made pretty 
clear from the bench that the court would not sustain 



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1 the pledge of the State's credit to a corporation unless 

2 they could be convinced that a public purpose would be 

3 served thereby. Hence, if it could be found that the 
* industry in question might relieve unemployment in 

5 Appalachia, then conceivably this would be a valid pledge 

6 of the credit, but on the other hand, if the corporation 

7 were the Bethlehem Steel Company, and the act is broad 

8 enough to permit a guaranteeing of an obligation made for 

9 the benefit of Bethlehem Steel Corporation, and I use this 
merely as an illustration -- I could use C. and P. of 

• LX Maryland -- then it was made pretty clear by remarks 

in 

i6 from counsel and also certain dicta and material quoted 

13 by the court that this would be struck down. 

14 Nov?, generally throughout the country the 

15 rule today is that a State can lend its credit to persons 
IS or corporations whether they be private or public if it 
17 can be shown that apublic purpose will be served thereby. 
IS As the Chairman of the Committee said in opening this 
19 discussion, examples are urban renewal, industrial 

development, companies, or credit corporations, and that 



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Now, the draft which is to be found on Section 
B merely says, the assets or credit, assets are used 
to get away from this silly argument that cash is not 
credit, and that is a new word, but the assets or credit 
of the State shall not in any manner be given or loaned 
to any individual, association or corporation, individual, 
association or corporation, words in existing 34, unless 
the public purpose will be served thereby, and now we 
come definitely to the point that was made earlier about 
the loan, where we specified that in this case, since it 
is a loan of credit, and not an actual borrowing for 
specific purpose, unless the act specifically states in 
its body what the public purpose is. 

Now, the majority of the Committee felt that 
these were sufficient safeguards in the loaning of the 
credit. Bear in mind that this is generally what the law 
is throughout the country today, but whether or not these 
are adequate safeguards is a close question, and two 
Members of the Committee felt that there ought to be at 
least one other safeguard, and that is that just as a 
State indebtedness cannot be incurred for a period of 



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1 greater than twenty-five years, so also an extension of 

2 the State's credit should be limited to a period of 

3 tv/enty-five years, and that is the intention of the addi- 

4 tional language found in Page G, where you will see the 

5 words, and limiting any loan or extension of State credit 

6 to a period not exceeding twenty-five years. 

V In connection with all this, I call your 

8 attention to the new Section which deals with Baltimore 

9 City, which says merely, provided, however , that the 
10 credit of the Mayor and City Council of Baltimore may 
l x be given or loaned to or in aid of any individual, 

12 association or corporation, as the same may be authorized 

13 from time to time in an act of the General Assembly, which 
14- is much, much broader than anything we are suggesting 

15 here for the State, and may be something that we will 

16 want to talk about later on as far as the City is con- 
IV cerned, but it is completely open as far as Baltimore 

18 City is concerned. 

19 The issue, then, before the Commission, as I 

20 see it, is, assuming that, again, the major yardstick is 

21 the public purpose, as I think it should be and as the 



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1 whole Committee thinks it should be, which is, in effect, 

2 the due process point. Do you want to go further and say, 

3 not only should the public purpose be stated in the act, bu^: 
* that I the extension of that credit should be limited to 

5 no greater a period than twenty-five years? 

6 That, Mr. Chairman, is the substance of the 

7 issue as I see it. 

8 THE CHAIRMAN: Mr. Sykes? 

9 MR. SYKES: In that connection, do I understand 
10 that the phrase, credit of the State, is used in a 

** broader and more colloquial sense than we had been using 

12 the term, State indebtedness, for earlier in the paragraph, 

13 and that credit of the State means not only State indebted- 

14 ness as above defined, but any instance where the State 

15 creates an obligation to pay, even though it might not 

16 be a general obligation and an irrevocable pledge of 

17 full faith and credit of the State? 

18 MR. CASE: It does not mean indebtedness. It 

19 is not synonymous with indebtedness . 

20 MR. SYKES: Is it broader? 

21 MR. CASE: It is not broader because it doesn't 



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1 include it . 

2 MR. SYKES: I see. 

3 MR. CASE: It means cases in which the State 

4 says in effect, if somebody else doesn't perform, the 

5 State will. 

6 MR. SYKES: Do you really mean that this 

7 doesn't include it? What about the situation where the 

8 State lends the credit in the sense of creating indebted- 

9 ness , even though a contingent indebtedness -- it says 

10 if somebody else doesn't perform, then we will irrevocably 

11 pledge the full faith and credit of the State, using the 

12 magic words, et cetera, to enable to perform. Don't you 

13 intend to include that, too? Or do you? I don't know. 

14 MR. CASE: What we are saying is that, and I 

15 am not sure that I get your question, Melvin, if you have 

16 an obligation incurred by another entity other than the 

17 State and it is merely guaranteed by the State, then there 

18 is a loan of the full faith and credit of the State. 

19 This is not considered State debt. It is contingent debt, 

20 but it is not debt. It is not considered in figuring 

21 the debt ratio of the State, for example. 



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Now, we do intend that the State can do this. 

It should be allowed to do this if a social 
justice will be served and if social good will be accom- 
plished. The question really is that it should not be 
allowed to do it where private, as distinguished from 
public purposes are to be served. That is point one. 

Now, point two is, should you have other 
limiting safeguards, such as a twenty-five year limit? 

MR. SYKES: I am still with point one. I am 
concerned about the situation where, as in the Hopkins 
case, the State wants to give to some private individual 
or institution, but it doesn't do what they did in Hop- 
kins. It doesn't issue the bonds and take the money and 
turn it over. That would be covered by assets. Instead, 
it does precisely what they avoided in Hopkins. It 
issues bonds and provides in the bonds that the proceeds 
are to be earmarked for a private institution. 

Is it not intended in your draft — 

MR. CASE: I don't know that that; is any dif- 
ferent from what happened at Hopkins. That is exactly 
what did happen at Hopkins. They earmarked funds for 



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private institutions. They have also done it for a 
number of other colleges. 

MR. SYKES: But I am talking about instead of 
giving the cash where the bond itself provides, that it 
is the credit which is being lent to the private institu- 
tion . 

THE CHAIRMAN: Wouldn't your illustration be cle 
if you supposed the case of an issue of bonds by the Johns 
Hopkins University guaranteed by the State of Maryland 
and the full faith of the State pledged? 

MR. CASE: Now, you are talking. That is the 
example . 

MR. SYKES: All I want to be sure of, I don't 
pretend to be a technical expert in this field, is that 
every instance of the lending of credit in the colloquial 
sense, whether it is an indebtedness of the State as you 
have defined it here, or whether it is not, is subject 
to the limitations of this last sentence. Now, you have 
indicated that you can't conceive of anysituation where 
an indebtedness of the State properly so called could 
be used to further private purposes. You have talked 



3r 



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about guarantees and other things. I don't know whether 
any could exist or not, but I would be very unhappy with 
an interpretation of credit of the State which would not 
include an indebtedness properly so called in some pos- 
sible fact situation where an indebtedness is the vehicle 
used to help the private person, and where such a vehicle 
might circumvent the limitations of this last sentence. 

THE CHAIRMAN: I think I followed part of what 
you said. Let me make this statement and see if Mr. Case 
would agree with it. There is no prohibition in this 
Section insofar as I am aware, none in the Constitution, 
that would prevent the State through the Legislature from 
making a gift of assets to a private individual, so long 
as some public purpose would be served thereby. The 
illustration of that is the gift to educational institu- 
tions generally in support of education, private education' 
al institutions. There is nothing to prevent that, and 
all this last sentence does with respect to that situation 
is reaffirm what I think is inherent in the Constitution 
anyhow, and that is that it must be to serve a public 
purpose . 



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The second situation is one where you are 
lending credit, which means you are not incurring a present 
indebtedness, and this is the real problem in this thing. 
You have a contingent liability, which therefore the 
Legislature can tend to ignore or forget about because 
you don't have to pick it up in next year's budget, and 
what you are doing is saying that you are lending the 
credit in that you will pay if somebody else doesn't. You 
will stand behind it, and in that situation, you are 
pledging the full faith and credit of the State. 

As I understand the Committee's purpose in 
this Section, that can be done without respect to the 
limitations set forth previously in this paragraph, but 
it can only be done to serve a public purpose. The State 
cannot agree to guarantee a loan that I may want to make 
to buy a yacht because there is no public purpose to be 
served thereby, but they could guarantee a loan for an 
educational institution to build dormitories. 

MR. CASE: That puts it very clearly, and let 
me say, I think to give an illustration of just what we 
are talking about here, let's assume, using Hopkins, I 



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think it is fitting that we should, and the campus of 
the University of Maryland as an example, let's assume 
that the Hopkins wants to put out an issue of revenue 
bonds, as many universities are doing throughout the 
country. Dormitory revenue bonds generally are sold on a 
forty-year basis. The reason for this is that revenues 
from dormitories, from students, tend to be reasonable, 
and in accordance with their ability to pay, and there- 
fore you can't generate enough bond service requirements 
to pay off in an earlier period , so they are forty-year 
bonds. Nov;, let's further assume that Dr. Eisenhower 
comes to the Governor of Maryland and says, If we put out 
these bonds under the name of Johns Hopkins on a revenue 
basis, we are going to have to pay 6% per cent, because 
the people who invest in these bonds are really not sure 
that Hopkins is going to be able to fill up this dormitory 
for all of forty years, but if the State would say, on 
the back of that bond, that if it was ever defaulted upon, 
the State's credit would be pledged to pick it up, then 
we have got a lot of people who would buy the bonds, and 
we would only have to pay 5k per cent; so the Governor 



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says, Okay, and the Legislature endorses this idea, and 
it goes on. 

Now, the State now has lent the credit to a 
corporation for a public purpose and everything is met 
and that would be okay under one version of the Committee's 
Report. The other version would say that if the credit, 
lending of credit extended over a period of twenty-five 
years, you couldn't do it. That is the issue. 

MR. SYKES: Just one more point: Is it true 
that except for the twenty-five versus forty-year question, 
which is the question between the two drafts, this 
Section creates only one difference in the necessary 
conditions for creation of a State indebtedness, as you 
defined the terra here, as a word of art, and the lending 
or extension of State credit. Both of them have to be 
for a public purpose, the indebtedness under the first- 
sentence and extension of credit under the last sentence; 
and both of them have to be prescribed by the Legislature, 
but the difference is that while the indebtedness need 
not have an express statement in the language of what 
public purpose is in the act, the extension of credit does 



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have to have that . 

MR. CASE: This is a different distinction but 
not a different because in the creation of the debt by 
its very nature it would state the public purpose. You 
have to have a debt for something, whereas the credit is 
more involved, you see. You are not actually putting 
out any money for anything, and therefore it would have 
to be stated. 

THE CHAIRMAN: Mr. Miller? 

MR. SYKES: I think I understand. 

MR. MILLER: I would like to ask the Chairman 
a question. I don't actually follow this. If the State 
guarantees such a bond, does it do it using the magic 
words? 

MR. CASE: It would, yes. 

MR. MILLER: It would have to? 

MR. CASE: Yes. 

MR. MILLER: And then the question is whether 
the magic words could be extended for more than twenty- 
five years . 

MR. CASE: That is the issue. Now, of course, 



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as a practical matter, what V70uld happen would be that if 
Johns Hopkins defaulted, let's continue on with the 
example, of a forty-year period, if Johns Hopkins de- 
faulted, then the State would have to go out and sell 
its bonds. Now, the sale of those bonds would be governed 
by all the safeguards, twenty-five years, et cetera. That 
money would be used to pay off the other obligation, 
and then you would have then the State indebtedness, which 
would be subject to all the safeguards. 

MR. MILLER: That would be the practical 
solution, but as a matter of fact, aren't we, if we put 
this language in here, in a sense nullifying or altering 
the twenty-five year provision that goes before it? 
That is the thing that concerns me. 

MR. CASE: That concerned the Committee, too. 
I don't think as a practical matter it would make any 
difference, because I say, if the State were ever called 
upon to perform, the only way it could perform -- well, I 
don't visualize -- let's put it this way. There are two 
ways it could perform. One, sell its own bonds, pick up 
the others, and go on from there, which would be perfectly 



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consistent. The other would be to take over the obliga- 
tions and keep them outstanding and make the payments as you 
went along. 

MR. MILLER: Might there not be some question, 
though, if such bonds went out, for the attorneys that 
were passing on the bonds, to say, Well, this bond 
guarantees something that it can't guarantee because it 
is guaranteeing a forty-year indebtedness instead of a 
twenty-five year indebtedness? 

MR. CASE: What we would say is that in case 
of default, the State will obligate itself to raise the 
necessary money to refund the bond issue, and the bonds 
that were being sold would, of course, would be subject 
to this. It would mesh together. 

THE CHAIRMAN: Dr. Jenkins? 

DR. JENKINS: Mr. Chairman, first, a matter of 
clarification. I assume that the Committee recommendation 
we are considering is the last sentence on G rather 
than the last sentence on B? 

THE CHAIRMAN: The other way around. The Com- 
mittee recommendation is the last sentence on B. 



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DR. JENKINS: It does not include the twenty- 



five years? 

THE CHAIRMAN: That is correct. 

DR. JENKINS: I will withhold my comment until 
somebody proposes G, because I thought this was the last 
recommendation of the Committee. 

MR. CASE: The Chairman would like to say that 
he is somewhat perplexed about really what the Committee 
is -- this question is so close, this question is so 
close that I think what we are really saying here is that 
we submit it to the Commission, show you both sides of 
it and whatever judgment is made here, after hearing the 
argument, we are perfectly happy with it. 

DR. JENKINS: That interpretation, while I 
have the floor, I wish to speak for the original recom- 
mendation on B and eliminating the limitation of twenty-' 
five years. At first glance, it would seem that if there 
is a twenty-five year limitation for the general obliga- 
tion bonds, then this ought to extend to the support of 
credit, but in my opinion there is a great difference. 
The general obligation bonds are paid from general tax 



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revenues . There may be in the future and probably 
will be in the future many instances in which the State 
may want to support bonds which are being paid for by 
revenues from specific projects — college dormitories, 
we may want to take over the State function, public hous- 
ing, port authority. We may in the future want to develop 
a school authority construction such as they have in 
the University of Pennsylvania. I don't think we should 
in this Constitution estop the General Assembly from 
such financing if this seems to be appropriate. 

Let me take as an example, not Hopkins. I 
think this sort of brings in a private institution. 
Let's take the new campus at the University of Maryland, 
Catonsville, which is opening today. The classroom 
buildings there are built by bond issue, general obliga- 
tion bond issues, and there is no question about that. 
Let us suppose the University wants to put dormitories 
there. Under present conditions, it could probably get 
the money from the Federal agency, but this may change 
in the future. Under this twenty-five year limitation, 
then, the credit of the State could be to provide only 



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1 for a twenty-five year period, and the students then, the 

2 student rentals would have to be considerably higher 

3 than under a longer period. For example, for each 

4 million dollars at a twenty-five year period, there would 

5 have to be collected from students $40,000 per year to 

6 pay for the dormitory, plus the interest and operating 

7 expenses. Under a forty-year period, this would be 

8 $25,000. I know from my own experience that the larger 

9 sum per year would make the dormitory rentals almost 

10 prohibitive. 

11 I think the view in the Committee was that we 

12 cannot trust the General Assembly; that unless we put 

13 this limitation in the Constitution, the General Assembly 

14 will just go haywire on this thing. I do not believe 

15 this is true. I believe that the General Assembly will 

16 consider each case on its merits. I, therefore, favor 

17 not including the twenty-five year period in this last 

18 statement. 

THE CHAIRMAN: Mr. Hoff? 

20 MR. HOFF: I am one of the proponents of the 

twenty-five year limitation, and I can say that basically 



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there are two reasons. First, consistency. We see no 
reason, or I see no reason why we should limit the State 
in its own indebtedness to a period of twenty-five years 
and then on the other hand say there shall be no such 
limitation on the State's grant of credit or loan of 
credit. If you have a limitation on one and the limita- 
tion is good, it would seem to me to apply to the grant 
of credit as well as to the creation of an indebtedness. 

Secondly, I think one of the benefits of having 
a limitation of twenty-five years is, as Dr. Jenkins 
agrees, that it does avoid irresponsible postponement of, 
let's say, repayment of a State obligation. The closer 
you can bring this thing to home, and the sooner these 
obligations have to be paid off, the more it will reflect 
upon the judgment of those who have created the obliga- 
tion, namely, the General Assembly; and I think that there 
would be a natural tendency to avoid the responsibility 
for an act creating an obligation by postponing and pro- 
longing unlimited periods of grants of credit, rather 
than having the thing face up within the period of, let's 
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their assent to such a loan. 

Even in the event of, let's say, a forty-year 
loan, which has been the example, I still don't believe 
that the State would be prevented from granting, if 
these bonds were issued serially, I still think the State 
would be able to guarantee the first twenty-five years 
of those bonds. The last fifteen years might be another 
story, but I think that that may be of some considerable 
help to the examples as set forth by Dr. Jenkins. The 
dormitory ought to be able to carry itself the last 
fifteen years when the interest rates, or the amount of 
interest would be considerably lower after redemption of 
25/40ths of the principal and bonds. For these reasons, 
at least two of us on the Committee felt that the limita- 
tion that you impose upon the State in the grant of its 
indebtedness., in the creation of its indebtedness should 
also be imposed in the grant of credit. 

THE CHAIRMAN: Mr. Gentry? 

MR. GENTRY: My question was really to get 
to the understanding of the word , credit. I thought I 
heard Mr. Case explain to Mr. Sykes that credit was not 



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as broad so as to include indebtedness up above and then 
he later answered Congressman Miller by saying that the 
magic words would be used in this authorizing act. I 
wonder if it is the lending of credit, pledging it as 
security, even though it be contingent, would that amount 
to a general obligation? 

MR. CASE: Mr. Gentry, indebtedness means in, 
effect, the entity that is doing the acting, the moving 
entity borrowing its funds from some third person. The 
lending of credit means that the moving entity is making 
it possible for one third person to borrow from another 
third person. This is the distinction between the two. 

The pledge of credit can be a pledge of the 
full faith and credit and irrevocable taxing power, which 
would mean that if at any time the first third person 
did not pay to the second third person, then the guarantor, 
the State, would use its irrevocable, unlimited taxing 
power, and at that point of time, an indebtedness would 
be created which would be a debt of the SU-te, but until 
the default took place, there would be no debt, and it is 
for this reason that I suggested to Mr. Sykes that the use 



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of the word, credit, does not include indebtednes 

o 

such. It does include, of course, the possibility that 

3 indebtedness might be incurred at a later time. 

THE CHAIRMAN: Dr. Bard? 
DR. BARD: I have two questions for the Chair- 
man to educate me. In general, an outstanding indebted- 
ness, a person can easily enough find out what is the 
outstanding indebtedness of the State of Maryland. Would 
one be able to find out fairly easily the outstanding 
endorsements of credit, the extent of it? Would there 
be statutory limits to it, and your answer to the ques- 
tion would permit me to respond, if I might, Mr. Chairman, 
13 on my view in respect to twenty-five years , twenty-five 
" year limitation. 

15 MR. CASE: What we call the bond circular, 

16 which is, in effect, a prospectus given to potential 

1^ purchasers of bonds, will traditionally show contingent 
*8 obligations, particularly in the case that we have been, 
or the cases that we have been talking about here today, 
namely, the dormitory, . What you would find would be 



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1 first case I talked to Mr. Gentry about, where the moving 
entity got the money and used it. Another table would 

3 show contingent debt. These debts are debts, not present 

4 debts, but are situations which could, if the first third 

5 person, which is obligated to pay defaulted, ripen into 

6 a general obligation, and these are shown on the balance 

7 sheet, so that the investor, this sophisticated investor 

8 examines not only what the outstanding debt is, but 

9 what might be the debt in case of default by third persons. 

1° Any good sound bond circular or prospectus must show this 

■l i 

■ Lx information. 

12 DR. BARD: I think if this is so and the lat- 

13 ter could drive to a far greater degree than the former, 

14 and as I visualize this, this is certainly possible, that 

15 is, this endorsement of credit could go way beyond the 

16 actual outstanding indebtedness of the State itself. 

17 MR. CASE: That is correct. 

18 DR. BARD: If this be so, then I do believe 

19 that there ought to be some limit on this, and it seems to 

20 me that the mere nature of the twenty-five limit, and I 

21 am involved in school activities, too, is important. I do 



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think that there would be possibilities of extending 
this twenty-five year limit on the basis of the way the 

3 loan goes through, even for dormitories, would there not 

4 be? 

5 MR. CASE: Extending it? 

DR. BARD: Yes. You might set up as twenty 

7 five and then fifteen additional, so you could guarantee 

8 the first portion of it. Couldn't you do that? 

9 THE CHAIRMAN: You mean as Mr. Hoff suggested? 
10 DR. BARD: Pretty much that way. 

*1 MR. CASE: In other words, take out the first 

12 twenty-five years? 

13 DR. BARD: Yes. The dormitories could still 

14 be built. 

15 MR. CASE: If the Commission wants to limit it, 

16 I would guess that theingenuity of bond counsel knows no 

17 bounds. 

18 THE CHAIRMAN: Judge Adkins? 

19 JUDGE ADKINS: Just as a matter of information, 

20 does the lending of the credit of the State under the 

21 last sentence add as much strength to the obligation in 



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the marketplace as does the creation of the full faith 
and credit indebtedness under the earlier Sections of 
the provision? In other words, is there any distinction 
drawn in the marketplace between the endorsement of the 
State and the original obligation of the State? Does 
one receive as favorable consideration in the marketplace? 

MR. CASE: When you say consideration, the 
word, credit, implies full faith and credit, unlimited 
taxing power. 

JUDGE ADKINS: Does that carry with it, for 
example, a directive to the Comptroller to set apart from 
the first revenues in the event the obligation is in 
default and the General Assembly takes no further action? 

MR. CASE: It would require — no, there would 
have to be further action. 

JUDGE ADKINS: By the Legislature? 

MR. CASE: By the Legislature. The Legislature 
would have to come to the rescue of the situation by 
issuing State obligations, which then would put into 
motion all of the material that goes above in this Section 

JUDGE ADKINS: If the Legislature were to 



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refuse to take that action what would then be the recourse 
of the holders of the bonds? 

MR. CASE: We had that question come up in 
the MIDFA case, and because that was the case, you know 
where the court finally held that the full faith and 
credit wasn't pledged, and what would happen would be, 
first, that somebody would try to file a taxpayer's 
suit, I suppose, to mandamus the Legislature, which 
probably wouldn't get too far, as I understand the law 
right now; but secondly, of course, as a practical matter, 
the name of the State would be completely kaput, and 
from that time on, everything would stop. Nobody, I 
mean Wall Street would just say, Well, Maryland is the 
one that defaulted on the bonds, and that is the end of 
it. 

THE CHAIRMAN: Isn't that the important thing? 
The State would then be in default. 

MR. CASE: That is right. It would be in de- 
fault. This has never happened, thank goodness, and hope- 
fully never will. 

JUDGE ADKINS : I assume the answer to my quest ior 



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is the lending of credit under this provision is accep- 
table to the marketplace to the same extent as the creation 
of an indebtedness of the State insofar as the attachment 
of value to endorsement is concerned? 

MR. CASE: It is considered valuable, yes. 

JUDGE ADKINS: Is it as valuable? 

MR. CASE: It certainly is, yes. The answer 
to that in short is Yes. It is considered as valuable. 

JUDGE ADKINS: So you don't feel it is neces- 
sary to go any farther here? 

MR. CASE: No. 

JUDGE ADKINS: In providing for alternate 
±<f methods of collection in order to get the best possible 

acceptance in the marketplace, as you have done with 
*5 your insertion of your provision relative to the Controller 

16 MR. CASE: No. 

17 JUDGE ADKINS: You don't feel some alternate 
method of payment is necessary in the absence of subse- 
quent acts by the Legislature in the event of default on 



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absolute term. When you pledge your credit, you have 

got to pay if there is a default by the principal obligor. 

3 THE CHAIRMAN: Mr. Sayre? 

4 

MR. SAYRE: One question. Is this last sen- 

5 tence not a separate thought from the rest of the Article? 

6 MR. CASE: Yes. 

7 MR. SAYRE: Would it be preferable to have this 
° as a separate paragraph, then? 

9 MR. CASE: We thought about that, Phil, and 

it is not a separate paragraph now. It is really right 
xx in the middle of existing Section 34. I can't speak 

xc ' for the Committee, but personally, there is no difference. 

13 If the Committee on Style wanted to pull it out and put 

14 it into another Section, that is all right. 

15 MR, SAYRE: It would seem to me clearer to 
IS put it as a separate paragraph since it is a separate 

17 thought. If I may tie that into the second part, Mr. Hoff 

18 mentioned that for the sake of consistency, have twenty - 

19 five years on credit, as on indebtedness, and I don't 

20 think that is being consistent, because you are not 

21 relating something that is logically related to each other. 



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In other words, if we have anything in the other Section 
of the Constitution that requires a certain vote, here we 
are comparing apples to oranges. Therefore, it is a dif- 
ferent animal, and it doesn't relate to it statistically. 

I can see here where we are talking about 
lending of credit as a different animal from indebted- 
ness, and therefore, because it is a different animal, 
I can see only injurious and deleterious effects in seek- 
ing favorable mortgage or loan terms if we should provide 
a limit to credit. In other words, I am going to go 
out in the marketplace and get a good mortgage on my new 
dormitory or have other favorable loans , and I can even do 
better if I can get the State to back me up on this. In 
other words, as I see it, you wouldn't want to hamstring 
an economic development of the State, which even this 
could do. It is just two different animals, and you 
wouldn't want to tie up the credit to twenty-five years 
es you would the indebtedness. When you have actual in- 
currence of indebtedness, then the twenty-five year part 
becomes effective, and I think this is perfectly well 
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THE CHAIRMAN: Mr. Hoff? 

MR. HOFF: I don't think it is inconsistent 
to say -- I think it is inconsistent to say that the 
State can do for somebody else what it cannot do for 
itself. 

MR. SAYRE: But it can do for itself when it 
becomes actual under the twenty-five years. 

MR. HOFF: It can do for itself, issue in- 
debtedness only to the extent of a twenty-five year period 
Without that same limitation, it could grant credit or 
potential indebtedness and extend that potential indebted- 
ness to an unlimited period, for a hundred years if the 
Legislature so chose. I think that there is argument 
for consistency in putting the same limitation on. 

I might also say that, and Mr. Case can cor- 
rect me, but does not the grant of credit have the same -- 
an increase in the grant of credit -- Have the same 
adverse effect on the ratings of the State's obligations 
or State's indebtedness as actually the issuance of the 
indebtedness itself? 

MR. CASE: Well, that also came up in the 



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1 MIDFA case, and I can answer it by the way Mr. Reppe , 

2 the senior partner of Alexander Brown answered it, 

3 when I asked him the same question. He said that it did 

4 not have exactly the same bearing because the first thing 

5 that the bond analyst looks at is the debt ratio, which 

6 means the ratio of direct debt to assessable basis, and 

7 of course, it does not figure into that equation, so that 

8 if you are talking about a 13 per cent debt or 12 per 

9 cent debt, you do not take into consideration this, but 
10 the overextension of credit being as it is, a breeding of 

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xx potential liability, is looked at by Noddy s, and if the 

12 great proliferation of new situations were shown on the 

13 balance sheet, it is taken into consideration. 

14- THE CHAIRMAN: We are going to have to break 

15 off at this point for lunch, because, we can't finish the 

16 debate, but before we do so, may I make just this obser- 

17 vation, as I think the debate on this point has indicated, 

18 This is perhaps the most troublesome part of this whole 

19 subject, and the difficulties that the Commission is 

20 having are the same difficulties that everybody who has 
wrestled with it over the years has had, even going back 



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1 to 1851, the argument being that the Legislature can 

2 easily pledge the State's credit so long as it is not 

3 concerned with raising taxes now to take care of it or pro- 

* viding in the indebtedness it is going to affect the next 

5 State budget. Therefore, the temptation is to be reck- 

6 less with the pledge of the State's credit. In the previous 
^ Constitutions, the only remedy for this was to absolutely 

° forbid it, so that in the present Constitution, as to 

* both State and with limitations of county and Baltimore 

■^ City, you simply cannot do it. You cannot lend the credit 

* x of the State to any individual, association, or corpora- 

12 tion. 

13 This draft proposes to remove that limitation 

14 and you should have that in mind. This is a definite 

15 step to remove the limitation and permit the granting of 

16 the credit. The question is whether you want to go the 

1 7 full extent and not have any limitation, or whether you 

18 are going to have some limitation, twenty-five years, 

19 or some other limitation. 

20 tvr. CASE: Hay I make a statement on that? 
With all due respect to you, at least the Attorney General 1 



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does not share this view that you just expressed. It is 
true that the present Section 34 says in substance that, 
and I will read it again, The credit of the State shall 
not in any manner be given or loaned to or in aid of any 
individual, association or corporation, but a great deal 
of judicial gloss has been placed on that language by 
the courts around the country, and many constitutions 
have exactly those same words, and by our own Court of 
Appeals in the Frostburg case, which led the Attorney 
General to give an official opinion this year that if a 
public purpose was served, then the credit of the State 
could be lent, this provision in the Constitution to 
the contrary notwithstanding, and that opinion is the 
opinion that, of course, we challenged in the MID FA case 
and it was that very precise point that the court did 
not reach, but as the law stands today, at least if you 
want to call the Attorney General's opinions law, it is 
that the credit of the State can be given if there is a 
public purpose served, and I might say that in the lower 
court in that case, Jim Cullen said to us privately that 
he would have ruled if called upon to do so that the 



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Attorney General was correct in that, and that because 
of the Frostburg case, V7hich was the garment factory 
case, that I talked to you about earlier, that he felt 
that credit could be lent if due process would be satisfied 
the due process argument would be satisfied. 

THE CHAIFMAN: Let's adjourn for lunch now. 
DR. JENKINS: Mr. Chairman, may I have a word? 
I am very unhappy with not getting to a vote on this. I 
would like to explain to the Chairman I cannot be here 
this afternoon. I think this may be of very crucial 
importance to higher education. Could I have the unusual 
privilege of giving the Chairman my proxy to cast my 
vote against the twenty-five year limitation? 

THE CHAIRMAN: In the absence of objections 
and since you have been present throughout the discussion 
on this, I would say that we would at the appropriate 
time record your vote in opposition. Is there any objec- 
tion to that procedure? 

(There was no response.) 

MR. HOFF: I would like to be recorded the 
same way, because I won't be here this afternoon. 






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MR. CASE: Could we take a vote on it? 

THE CHAIRMAN: Is there any further discussion 
that anybody wants on this? 

DR. BARD: I have a question to ask Dr. Jenkins 
on it. Is it not true that under the court decision, 
the higher educational institutions can now build dor- 
mitories under this arrangement? 

DR. JENKINS: Yes, but without the support of 
the State; this is not a problem now as long as the 
Federal Government, and you are ending the discussion, 
Mr. Chairman, as long as the Federal Government provides 
these funds, but the vicissitudes of political life are 
such that the Federal Government may not do this . There- 
fore , we would forever estop without a Constitution 
amendment the State entering into this. 

MR. CLAGETT: Mr. Chairman, I want to be clear 
of record whether or not the local subdivisions are or 
are not included within the Lines 17 and 18 of the 
proposed substitute Article, v?here the words appear, any 
individual, association or corporation. 

THE CHAIRMAN: I am not sure whether I under stanc 



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your sentence. The credit that is spoken of in this 
Section is the credit of the State, and not of the 
political subdivisions. Is that your question? This 
does not deal with the question of -- 

MR. CLAGETT: No, but where the local sub- 
divisions are the beneficiary of that credit. 

THE CHAIRMAN: I think Mr. Case stated that he 
would so construe it. 

MR. CLAGETT: That is what I understood him 
to say, and that would be part of the record? 

THE CHAIRMAN: Yes. 

MR. CLAGETT: I also understood him to say 
that there has never been any interpretation of the word, 
corporation, to include municipal corporation. 

MR. CASE: That is correct. 

THE CHAIRMAN: Nor to the contrary. 

MR. CASE: Nor to the contrary. 

MR. CLAGETT: Nor to the contrary. 

MR. BROOKS: I might add many, many States 
have specific provisions dealing with political subdivision^ 
on this very issue separate and apart from the gen2ral 



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provisions such as this. 

MR. CLAGETT: That is why I am asking the 
question, to pinpoint our thinking here, because I am 
aware of that. 

THE CHAIRMAN: Mrs. Bothe? 

MRS. BOTHE: I just wanted to ask whether the 
present fifteen-year limitation on indebtedness also 
applies to the granting of credit. 

MR. CASE: There is nothing in the Constitution 
that says anything about fifteen years as far as credit 
is concerned. Just as Mr. Eney, the Chairman, has said, 
it just prohibits it, period. 

MRS. BOTHE: But nevertheless it has been 
extended . 

MR. CASE: The Attorney General says it is not 
prohibited unless there is a public purpose, and you 
could have it for forty years. His opinion is that you 
could have it for forty years. 

THE CHAIRMAN: Are you ready for the question 
on the last sentence? Any further discussion? All right. 
MR. SYKES: Mr. Chairman, I think it may be 



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better to defer this, because I am not sure that all the 
alternatives are presented. There is a third alternative, 
which is to retain the provision in the existing Consti- 
tution prohibiting the extension of credit and to make 
the Legislature actually borrow the money and show it on 
the State balance sheet, that lessens to some extent the 
temptation to get into this. 

THE CHAIRMAN: I didn't mean to suggest that 
the only question here is the twenty-five years or none. 
The question is whether the whole sentence shall be 
approved also. Are you ready to vote on that question 
as well as on the point? 

MR. SYKES: I don't think there is any point 
on that. 

JUDGE ADKINS: I would prefer to carry it over 
to think about it over the lunch hour. 

THE CHAIRMAN: Is there any objection to record- 
ing Dr. Jenkins 1 and Mr. Mercer Smith's voting in favor 
of the provision which appears on Sheet B and against the 
provision which appears on Sheet G? I take it, Mr. Smith 
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that would prevent the credit of the State being given 
in a loan to any individual, et cetera? 

DR. JENKINS: Or a limitation of twenty-five 
years . 

DR. BURDETTE: Mr. Chairman, that is the point 
I raise no objection to the vote being recorded on this 
specific issue, but it should seem to me that Mr. Sykes 
brings up his alternative, and it is debated here that 
people should not vote on that. 

THE CHAIRMAN: In view of an objection then, 
they will be permitted to vote only on the point against 
which there is to be no objection, against the twenty- 
five years. He will not be recorded on the other 
objection. Let's adjourn for lunch. 

(Whereupon the meeting adjourned at 12:15 p.m. 
to reconvene at 1:00 p.m. of the same day.) 



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